Urban Link Pty Ltd v Burwood Council

[2023] NSWLEC 1400

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Link Pty Ltd v Burwood Council [2023] NSWLEC 1400

Hearing dates:

Conciliation conference held on 27 June 2023

Date of orders:

26 July 2023

Decision date:

26 July 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA10.2019.91.1 is modified by consent to Modification Application DA10.2019.91.4, in the terms set out in Annexure A.

(3) Development Consent DA10.2019.91.1 is subject to the consolidated conditions as described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – conditions relating to approved building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Burwood Local Environment Plan 2021

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 98

Land and Environment Court Act 1979, s 34

Texts Cited:

Burwood Council Community Participation Plan 2019

Burwood Development Control Plan 2012

Category:

Principal judgment

Parties:

Urban Link Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
P Holt (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/112302

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against a condition imposed on a modification of Development Consent DA10.2019.91.1 (the Consent) by the Burwood Council (hereafter the Council), as sought in Modification Application DA10.2019.91.4 (the MA), and which relates to an existing mixed use development with residential units on Lot 0 in Strata Plan (SP) 49414, also known as 28 Victoria Road, Burwood, Lot 0 SP 4241, also known as 28A-30 Victoria Avenue, Burwood, and Lot 0 SP 4711, also known as 32-34 Victoria Road, Burwood (together the site).

2. The MA seeks amendment to the Consent by deletion of condition 175 that requires parking spaces and storage to be tied to a strata lot, and not a utility lot.

3. The original Development Application DA10.2019.91.1 was determined by the grant of consent by the Council after approval of the Sydney Eastern City Planning Panel on 24 September 2020. The MA was modified by Council on 18 May 2023, which imposed a new condition (175).

4. The Applicant appealed against the condition (175) imposed by consent of the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by request of the parties. The conciliation conference was held in person.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court, which amended the contested condition of consent and also amends other existing conditions to reflect this change, as described in Annexure A.

7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its power under s 4.55(2) of the EPA Act, to amend the Consent, as described in Annexure A, with consolidated conditions provided in Annexure B.

8. The requirements of s 4.55(2)(a) of the EPA Act are satisfied. The parties agree that the modification is substantially the same as originally approved under the Consent, specifically with regards to the built form, resulting in no environmental impact and is consistent with the other conditions of the consent.

9. The parties confirm that concurrence of relevant authorities is not required, pursuant to s 4.46 of the EPA Act, and that the requirements of s 4.55(2)(b) are not relevant for consideration.

10. The parties agree that the amendment to the conditions of consent address all relevant jurisdictional requirements. These amendments are consistent with the provisions of the Burwood Local Environment Plan 2021. Satisfaction of the requirements of s 4.15(1) of the EPA Act remain unchanged as assessed in the Consent. The requirements of s 4.55(3) are addressed.

11. The Council confirms that the notification of the MA was not required, pursuant to the requirements of the Burwood Development Control Plan 2012 and the Burwood Council Community Participation Plan 2019. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied.

12. I am satisfied, based on the evidence before the Court, that there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. Council has undertaken the appropriate merit assessment and I have considered the jurisdictional assessment provided by the parties. The appeal for Modification Application DA10.2019.91.4 satisfies the requirements of s 4.55(2) of the EPA Act for the Court to grant consent to modify the Consent.

13. All actions relied on by the MA are specific to the site and the Applicant is the owner of the site, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021.

14. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

15. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA10.2019.91.1 is modified by consent to Modification Application DA10.2019.91.4, in the terms set out in Annexure A.

3. Development Consent DA10.2019.91.1 is subject to the consolidated conditions as described in Annexure B.

Sarah Bish

Commissioner of the Court

23.112302 Annexure A

23.112302 Annexure B

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Decision last updated: 26 July 2023