Theedam v Inner West Council

[2023] NSWLEC 1792

Land and Environment Court

New South Wales

Medium Neutral Citation:

Theedam v Inner West Council [2023] NSWLEC 1792

Hearing dates:

Conciliation Conference on 18 December 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification application MOD/2023/0172 is approved and development consent no. DA/2021/0793 is modified in the terms in Annexure A.

(3) Development consent no. DA/2021/0793 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – alterations and additions – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Category:

Principal judgment

Parties:

Trent Theedam (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/326973

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against the determination of modification application MOD/2023/0172, for modifications to the approved ground and first floor additions, construction of a dormer walkway and internal reconfiguration at 34 Wharf Road, Birchgrove, legally described as Lot A in DP441954 (the site). The development consent sought to be modified is DA/2021/0793.

2. The Applicant’s Statement of Facts and Contentions identifies the following condition as the issue in dispute:

• Deletion of conditions 1(a) Design Change which states:

• 1a. Design Change

• Prior to the issue of a Construction Certificate, the Certifying Authority must be with amended plans demonstrating the following:

1. The rear roof plane is to be retained in its entirety, to mitigate adverse heritage impacts.

2. The proposed link between the attic space and first floor rear addition is to be deleted.

3. The skylight proposed in the rear roof plane, above the bathroom, is to be deleted.

4. The approved staircase in the rear addition is to be retained, to service the first floor of the rear addition.

3. Notwithstanding the condition in dispute, the entire modification application is the subject of this appeal.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties for 18 December 2023. 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. This decision involved the Court upholding the appeal for the modification application and modifying the development consent.

6. Accompanying the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note, Council’s assessment report and documentation within the Class 1 Application, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. This is set out below.

10. I am satisfied that owners consent accompanied the modification application.

11. I am satisfied that the development as proposed to be modified will be substantially the same as the original development, with consideration of the Statement of Environmental Effects prepared by Navon Planning dated 8 June 2023 (SEE) and Council’s assessment report. In summary, the proposed modifications seek demolition of part of the roof form, construction of dormer walkway with associated works, minor extensions of the ground and first floor additions and internal works to a heritage item. I am satisfied that the development as sought to be modified will be substantially the same as the original development for alterations and additions to a heritage item. The minor increases to the rear additions and addition of the dormer walkway with associated works do not radically alter the approved original development and building envelope.

12. With respect to s 4.55 (c) and (d), the modification application was notified 27 June 2023 and 11 July 2023. In reaching agreement, Council as the consent authority has considered the concerns raised by the six submissions received.

13. With respect to s 4.55(3), in reviewing the original assessment report and local planning panel minutes of 14 June 2022, the proposed modification does not offend the reasons for the grant of consent.

14. The parties agree and I accept that the modification application is accompanied by a BASIX Certificate that satisfies the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

15. The parties agree and I accept that the provisions required to be considered by ss 4.55(2), 4.55(3) and 4.15(1) of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional submission.

Conclusion

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

18. 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.

Orders:

19. The Court orders:

1. The appeal is upheld.

2. Modification application MOD/2023/0172 is approved and development consent no. DA/2021/0793 is modified in the terms in Annexure A.

3. Development consent no. DA/2021/0793 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 22 December 2023