Tarnawski v Woollahra Municipal Council

[2020] NSWLEC 1379

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tarnawski v Woollahra Municipal Council [2020] NSWLEC 1379

Hearing dates:

Conciliation conference on 12 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See orders at [7] below.

Catchwords:

MODIFICATION APPLICATION – modification of conditions of consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Kirstin Tarnawski (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
H Grace (Applicant)
P Rigg (Solicitor) (Respondent)

Solicitors:
Peter R Rigg (Respondent)

File Number(s):

2020/185510

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Kirstin Tarnawski who is dissatisfied with the determination of modification application 544/2018/2 by Woollahra Municipal Council. The modification (under s 4.55(1A) of the EPA Act) seeks the deletion of conditions C.1(d), C.4(b) and C.4(e) from the consent. These conditions required the relocation of the properties existing vehicular cross over. The proposed development to which the consent relates is alterations and additions to a residence at 3 Ginahgulla Road, Bellevue Hill.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 17 August 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, and the conditions of consent are modified.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. I am satisfied that the proposed modification is of minimal environmental impact, and

2. I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted,

3. At the time of the lodgement of the modification application the public notification requirements for the application were contained in Chapter A2 of the Woollahra Development Control Plan 2015. I am satisfied that the modification application was notified, and any submissions received have been considered,

4. In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.

5. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

1. Appeal allowed;

2. Condition C.1 d) be deleted from the Modified Development Consent No. 544/2018/2 dated February 2020 (Modified Development Consent) and replaced with the following condition (indicated with underlining):

“C.1 Modification of Details of the Development Consent (section 4.17(1)(g) of the Act:

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments:

…

d) a 5.0m wide driveway (as measured at the property boundary) as illustrated in the plan prepared by Partridge Engineers, which is annexed hereto and marked “A”;

3. Condition C.4 b) be deleted from the Modified Development Consent and replaced with the following condition (indicated with underlining):

“C.4 Road and Public Domain Works

A separate application under Section 138 of the Roads Act 1993 is to be made to, and be approved by Council for infrastructure works prior to the issuing of any Construction Certificate. The following infrastructure works must be carried out at the applicant’s expense:

…

b) reconstruction of a 5.0m wide driveway (as measured at the property boundary) as illustrated in the plan prepared by Partridge Engineers, which is annexed hereto and marked “A”;

4. There be no order as to costs.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (185109, pdf)

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Decision last updated: 21 August 2020