Tran v Fairfield City Council

[2023] NSWLEC 1486

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Tran v Fairfield City Council [2023] NSWLEC 1486

Hearing dates:

Conciliation conference on 7 and 31 July 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The Appeal is upheld.
(2) Modification Application No 2.3/1987 (as amended) is approved and the Development Consent granted to Development Application DA634/1987 by the Respondent on 4 January 1988, is modified as set out in Annexure A to this judgment.
(3) The Development Consent to Development Application DA634/1987, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure B to this judgment.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.55, 8.9
Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Nhac Hung Tran (First Applicant)
Kien Anh Tran (Second Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/36457

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Nhac Hung and Kien Anh Tran (Applicants) against the Respondent’s (Fairfield City Council) actual refusal of the Modification Application made pursuant to s 4.55(1A) of the EPA Act.

2. The modification application is to further modify the Development Consent No DA634/1987 issued by Council on 4 January 1988. This modification application seeks to modify Condition 2 of the development consent to permit the twenty-four (24) hour operation of the take away food component of the approved bread shop. The parties agree that the Modification Application seeks to modify the Approved Development by seeking to change its operational details rather than merely changing a condition.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 7 July and then 31 July 2023. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the agreement of the parties if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As this is a modification application, pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent, as modified, is “substantially the same” as the development for which consent was originally granted.

7. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. The parties have also considered the reasoning behind operational constraints in the previous development consents as part of the consideration of this application.

8. On review of the minor amendments made to the application, I am also satisfied that the proposed development, as modified, does not involve a radical transformation of the development and the essence of the development remains the same. It is for these reasons that I am satisfied that the modified application passes the “substantially the same” test for modification applications.

9. The s 4.55 Modification Application was notified by the Respondent from 8 February 2022 to 22 February 2022. No submissions were received. I am satisfied that the notification requirements have been met.

10. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

11. Based on the material provided by the parties, 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 am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

12. Pursuant to s 34(3) of the Land and Environment Court Act 1979, to give effect to the parties’ agreement, the Court orders that:

1. The appeal is upheld.

2. Modification Application No 2.3/1987 (as amended) is approved and the Development Consent granted to Development Application DA634/1987 by the Respondent on 4 January 1988, is modified as set out in Annexure A to this judgment.

3. The Development Consent to Development Application DA634/1987, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure B to this judgment.

S Harding AC

Acting Commissioner of the Court

36457.23 Annexure A

36457.23 Annexure B

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Amendments

06 September 2023 - Correction to coversheet representation

Decision last updated: 06 September 2023