Vincz v Inner West Council

[2023] NSWLEC 1613

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vincz v Inner West Council [2023] NSWLEC 1613

Hearing dates:

Conciliation conference held on 29 September 2023

Date of orders:

18 October 2023

Decision date:

18 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA/2017/0717 is modified by consent to Modification Application MOD/2023/0055, in the terms set out in Annexure A.

(3) Development Consent DA/2017/0717 is subject to the consolidated conditions as described in Annexure B.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, ss 38, 98

Inner West Local Environmental Plan 2022

Land and Environment Court Act 1979, ss 34, 34AA

Texts Cited:

Inner West Comprehensive Development Control Plan 2016

Category:

Principal judgment

Parties:

Andrew Vincz (First Applicant)
Karen Vincz (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
G Visentin (Solicitor) (First and Second Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions
Inner West Council

File Number(s):

2023/135718

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against conditions imposed on a Development Consent DA/2017/0717 (the Consent) by the Inner West Council (hereafter the Council), as sought in Modification Application MOD/2023/0055 (the MA), and which relates to construction of a home office/studio within the rear yard of an existing dwelling on Lot 5 Deposited Plan 13749, also known as 212 Hawthorn Parade, Haberfield (together the site).

2. The MA seeks amendment to the Consent by deletion of conditions 2 (a-e) and 17 (a, b and f) that relates to building design changes and flooding, respectively.

3. The original Development Application DA/2017/0717 was determined by the grant of consent on 16 February 2022. The MA was lodged with Council on 23 February 2023.

4. The Applicant appealed against the above conditions imposed by the Consent, 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 34AA(1) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by request of the parties. The conciliation conference was held via Microsoft Teams before me as Duty Commissioner.

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 deleted the contested condition (2) of consent, amended contested condition 17, and also amends existing condition 1A to reflect this change, as described in Annexure A.

7. Pursuant to s 34(3)(a) 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, pursuant to s 34(3) of the Court Act. 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 Inner West Local Environmental Plan 2022. Satisfaction of the requirements of s 4.15(1) of the EPA Act remain substantially 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 made, pursuant to the requirements of the Inner West Comprehensive Development Control Plan 2016, with no submissions received. 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 described by the parties. The appeal for Modification Application MOD/2023/0055 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 notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/2017/0717; and

2. Amendments to the Development Application DA/2017/0717 were filed with the Court on 29 September 2023.

16. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA/2017/0717 is modified by consent to Modification Application MOD/2023/0055, in the terms set out in Annexure A.

3. Development Consent DA/2017/0717 is subject to the consolidated conditions as described in Annexure B.

Sarah Bish

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 18 October 2023