Warde v Canterbury-Bankstown Council

[2019] NSWLEC 1322

Land and Environment Court

New South Wales

Medium Neutral Citation:	Warde v Canterbury-Bankstown Council [2019] NSWLEC 1322
Hearing dates:	Conciliation conference on 5 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend the modification application to rely upon the amended concept stormwater plans referred to in the table to condition 5 of Annexure A. (2)   The Appeal is upheld. (3)   Modification Application No. DA-274/2015/B for modification of Development Consent No. DA-274/2015 for the demolition of existing structures and the erection of an in-fill affordable housing development comprising a part three, part four storey residential flat building containing 12 apartments with basement parking and landscaping at 43 Matthews Street, Punchbowl is approved subject to the conditions in Annexure A. (4)   As a consequence of Order (3), Development Consent No. DA-274/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993
Texts Cited:	Canterbury Development Control Plan 2012
Category:	Principal judgment
Parties:	Ghassan Ali Warde (First Applicant) Marwa Warde (Second Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: S Nash (Applicants)   Solicitors: Foteades Legal (Applicants) R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/197957
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’) against the Respondent’s refusal of a modification application made pursuant to s 4.55(1A) of the EP&A Act.

2. The modification application seeks to modify Development Consent No. DA-270/2015 which was granted by the Council on 12 April 2017 for the demolition of all existing structures and the construction of an in-fill affordable housing development comprising a part three, part four storey residential flat building with 12 apartments and basement parking and landscaping (“the development consent”) at 43 Matthews Street, Punchbowl (‘site’). The modification application is concerned with site drainage arrangements.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 5 July 2019 and which I presided over. At the conciliation conference, the parties evidenced an 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 and granting consent to the modification application.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to these questions, an underpinning factor is that the modification is limited to the provision of alternative (and less complex) arrangements for site drainage. The proposal would allow drainage through use of an existing Council owned inter-allotment drainage line, the existence of which neither party was aware at the time of the original application. The Respondent has consented to the use of this stormwater line under s 59A of the Local Government Act 1993 (reference Statement of Reasons submitted by the parties and emailed to the Court on 4 July 2019).

6. In regard to jurisdiction, I note the following:

• Having regard to s 4.55(1A)(b), I am satisfied that the proposed modification is of minimal environmental impact.

• Having regard to s 4.55(1A)(b), I am satisfied 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.

• Having regard to s 4.55(1A)(c), I am satisfied with the advice of Council that under Canterbury Development Control Plan 2012 (clause A3.5), and mindful of the view of relevant officers that the modification will have no additional impact on any adjoining or nearby properties, no notification was required.

7. 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. 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.

8. The Court orders:

1. The Applicant is granted leave to amend the modification application to rely upon the amended concept stormwater plans referred to in the table to condition 5 of Annexure A.

2. The Appeal is upheld.

3. Modification Application No. DA-274/2015/B for modification of Development Consent No. DA-274/2015 for the demolition of existing structures and the erection of an in-fill affordable housing development comprising a part three, part four storey residential flat building containing 12 apartments with basement parking and landscaping at 43 Matthews Street, Punchbowl is approved subject to the conditions in Annexure A.

4. As a consequence of Order (3), Development Consent No. DA-274/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

…………………………

P Walsh

Commissioner of the Court

Annexure A (23.1 KB)

Annexure B (90.2 KB)

**********