Thanos v Georges River Council

[2021] NSWLEC 1767

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thanos v Georges River Council [2021] NSWLEC 1767

Hearing dates:

Conciliation conference on 10 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No. DA2018/0214 is modified in the terms set out in Annexure A, including the amended plans listed in Condition 1 to Annexure A (Amended Plans)

(3) Development Consent No. DA2018/0214 as modified by the Court is Annexure B.

(4) The Court notes that the Amended Plans were uploaded to the NSW planning portal on 26 November 2021 and 8 December 2021.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.55

Land and Environment Court Act 1979, s 34

Cases Cited:

Thanos v Georges River Council [2019] NSWLEC 1463

Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240.

Texts Cited:

Georges River Development Control Plan 2021

Georges River Council Community Engagement Strategy 2018 - 2028

Category:

Principal judgment

Parties:

Peter Thanos (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
T Messenger (Solicitor) (Applicant)
J Ware (Solicitor) (Respondent)

Solicitors:
Messenger & Messenger (Applicant)
Georges River Council (Respondent)

File Number(s):

2021/302444

Publication restriction:

No

Judgment

1. COMMISSIONER: This modification application (referenced as MOD2021/0176) is made pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The application is made direct to the Land and Environment Court and seeks to modify Development Consent DA/2018/0214 (the development consent) granted by the Court in proceedings 2018/363618 (Thanos v Georges River Council [2019] NSWLEC 1463) for demolition of a single storey building and construction of a part three and part four storey building containing ground floor business/office premises and a boarding house with ten rooms for eighteen lodgers and on-site parking at 31 Regent Street, Kogarah (Lot 15 DP 1397).

3. The modification application seeks certain amendments to approved plans. The ground floor plan would change to incorporate a mains meter cupboard at the front door and the addition of a fire booster. The North-East and North-West elevation drawings would be amended to incorporate the addition of the mains meter cupboard and other fire services-associated changes along with certain changes to shop front windows, balustrading and the like. An updated BASlX certificate has also been prepared, and would be appropriately referenced in consent conditions.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 10 December 2021. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(1A) of the EPA Act.

8. I note that the site is zoned B4 Mixed Use under Georges River Local Environmental Plan 2021 (GRLEP). I note the proposal’s permissibility and have considered the zone objectives.

9. The parties have taken me through the particulars of the changes and I am satisfied that the proposal is of minimal environmental impact and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified, because the proposed modification does not change the development in any significant way.

10. Further I accept the advice of the parties that there was no requirement for the modification to be publicly notified. The parties advise that the applicable plan, in regard to notification requirements, in this instance is the Georges River Council Community Engagement Strategy 2018 – 2028. Page 40 of the Engagement Strategy provides that Council will notify an application under s 4.55 of the EPA Act "where the proposed modification would have more than a minor increased impact on any neighbouring property". I agree with the parties that the impact from the proposed modification would be minor, only, and thus there is no requirement to notify in this instance.

11. I also note the advice of the parties that the application seeks approval for some works that have already been carried out. The parties agree that the Court has the power to approve those works retrospectively by way of approval of a modification application (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; (2000] NSWLEC 240).

12. In light of the explanation, I am satisfied that the Council has fulfilled the functions imposed on a consent authority under s 4.55(1A)(c), as required by s 4.55(8) of the EPA Act.

13. I have reached the state of satisfaction that the agreed decision of the parties is one that the Court could make in the exercise of its functions. Section 34(3)(a) of the LEC Act therefore requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)), which are embodied in the orders which follow.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the proposal.

Orders

15. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. DA2018/0214 is modified in the terms set out in Annexure A, including the amended plans listed in Condition 1 to Annexure A (Amended Plans)

3. Development Consent No. DA2018/0214 as modified by the Court is Annexure B.

4. The Court notes that the Amended Plans were uploaded to the NSW planning portal on 26 November 2021 and 8 December 2021.

…………………………..

Peter Walsh

Commissioner of the Court

Annexure A (287089, pdf)

Annexure B (371341, pdf)

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Decision last updated: 16 December 2021