Wati v Inner West Council

Case •

[2019] NSWLEC 1401

•

28 August 2019

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Wati v Inner West Council [2019] NSWLEC 1401
Hearing dates: Conciliation conference on 13 August 2019
Date of orders: 28 August 2019
Decision date: 28 August 2019
Jurisdiction:Class 1
Before: Smithson C
Decision:

The Court orders that:
(1)   The applicant is granted leave to amend the modification application to rely upon the amended plans in Annexure A.
(2)   The appeal is upheld.
(3)   Modification Application No. M/2018/135 to modify Development Consent No. DA/2013/283 is determined by approving the modifications as set out in Annexure A.
(4)   As a consequence of (3) above, Development Consent No. DA/2013/283 is now subject to conditions as 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
Leichhardt Local Environmental Plan 2013
Texts Cited: Leichhardt Development Control Plan 2013
Category:Principal judgment
Parties: Bijma Wati (Applicant)
Inner West Council (Respondent)
Representation:

Counsel:
J Walker (Applicant)
M Bonanno (Solicitor) (Respondent)

  Solicitors:
McCabe Curwood (Applicant)
Inner West Council (Respondent)
File Number(s): 2018/377658
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal by Bijma Wati (the applicant) lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by Inner West Council (the Council) of Modification Application No M/2018/135 (the modification application) to modify Development Consent No. DA/2013/283 (the consent).

  2. The modification application sought consent under the EP&A Act to increase the size of an upper floor balcony (deck) and awning at Lot 1 in DP 1239390 known as 44 Mackenzie Street, Rozelle (the site).

  3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

  4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

  5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

  6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

  7. The parties provided a Statement of Reasons for entering into the agreement, attached to the agreement. The Council sought that the Court provide the background to why the agreement was reached as outlined in that Statement.

  8. In this regard, the applicant had previously sought a building certificate, BC/2016/86 (the BC), to regularise certain existing works at the site, including a deck structure said to already have been in place. The BC was not granted by the Council, and the applicant did not appeal the Council’s decision to not grant the BC.

  9. The applicant then sought certain amendments to the consent by way of a modification application, M/2017/28, which was the subject of an appeal to the Court; proceedings 2017/248124 (the 2017 proceedings). These proceedings were resolved by way of a s 34 agreement, also overseen by me, on 1 February 2018.

  10. The applicant subsequently advised the Council that the alterations to the upper floor balcony agreed to in the 2017 proceedings were incapable of being performed due to alleged structural issues.

  11. The modification application resolves the alleged structural issues encountered with the resolution of the 2017 proceedings.

  12. On 16 August 2019, the applicant provided the Council with a set of revised architectural plans (the amended plans). The parties agreed that the amended plans resolve the Council's issues of compromising the character of the area, privacy, and amenity, being initial contentions raised in the appeal by the Council.

  13. The agreement also involves:

  1. Requirement for the structural integrity of the deck to be certified by the applicant’s certifier at construction certificate stage; and

  2. The works to be undertaken within 12 months of the Court’s approval to ensure that any issues of structural sufficiency of the decking can be satisfactorily dealt with in a timely fashion.

  1. In terms of jurisdictional issues, the s 34 agreement involves the Court exercising the function under s 4.55 of the EPA Act to modify the consent. I agree with the parties’ advice that the jurisdictional prerequisites in s 4.55(2) of the EPA Act are satisfied, in that:

  1. The development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. The consent showed an upper floor balcony. The 2017 proceedings modified the consent, relevantly by reducing the size of the upper floor balcony and including a Colourbond metal awning. The modification application increases the size of the balcony from that which was approved by the 2017 proceedings. The balcony is extended on the southern and western sides, and consequential modifications to the awning are proposed. These minor amendments are shown on the amended plans.

  2. The modification application was notified between 16 and 30 August, 2018 in accordance with the Leichhardt Development Control Plan 2013. No submissions were made in relation to the proposed modification.

  1. The parties advise that the modification application was properly made. I also accept that it complies with the relevant Council planning controls including those of relevance in the Leichhardt Local Environmental Plan 2013.

  2. On the basis of the amendments to the proposed development shown in the amended plans, and in consideration of the matters in s 4.15(1) of the EP&A Act, I note that it is agreed by the parties that all of the contentions have been resolved or are resolved by the modified conditions of consent.

  3. Accordingly, the Court orders that:

  1. The applicant is granted leave to amend the modification application to rely upon the amended plans in Annexure A.

  2. The appeal is upheld.

  3. Modification Application No. M/2018/135 to modify Development Consent No. DA/2013/283 is determined by approving the modifications as set out in Annexure A.

  4. As a consequence of (3) above, Development Consent No. DA/2013/283 is now subject to conditions as set out in Annexure B.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (1.84 MB)

Annexure B (113 KB)

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Decision last updated: 28 August 2019

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