Weiner v Waverley Council

[2022] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:

Weiner v Waverley Council [2022] NSWLEC 1233

Hearing dates:

Conciliation conference on 2 May 2022

Date of orders:

4 May 2022

Decision date:

04 May 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court Orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA-305/2017 is modified in the terms in Annexure A.

(3) Development Consent No. DA-305/2017 as modified by the Court is Annexure B.

Catchwords:

APPEAL – modification application – application to alter the rear building line at the upper storeys of a dual occupancy – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

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

Category:

Principal judgment

Parties:

Sue Weiner (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Waverley Council (Respondent)

File Number(s):

2021/364347

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the construction of a dual occupancy at 4 Victory Street, Rose Bay. The application seeks to alter the ground and first floor levels by an extension at the rear, such that the rear setbacks of the proposed modified development would be less than that which was approved by the grant of development consent. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 2 May 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on the same date. The agreement was reached following the lodging of an amended modification application on the NSW Planning Portal with the agreement of the Council, as required by cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000).

4. The amendments made in the amended modification application reduce the depth of the extension sought. This increases the proposed modified setback from what was originally sought in the modification application lodged with the Court. The signed agreement is supported by an agreed jurisdictional statement, in which the parties address the nature of the modification application and the planning provisions that apply.

5. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modification concerns alterations to the rear setback and does not change any essential element or result in any significant change to its built form. The reduced setbacks relate only to the rear setback, the resulting increase in the bulk that exceeds the height development standard is minimal, the increase in the floor space is similarly small, and the parties agree that there is no additional adverse impact on the neighbouring properties.

6. Further, I am satisfied that the notification requirements of s 4.55(2)(c) have been met. There were no submissions made with respect to the proposed modification.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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.

9. The Court notes that:

1. Waverley Council as the relevant consent authority for the purposes of cl 121B of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending modification application no. DA-305/2017/C (modification application) to rely on the following documents:

1. Amended Architectural Plans prepared by Brewster Murray and dated 11 April 2022; and

2. BASIX Certificate 833443M_03 dated 2 May 2022.

2. The amended modification applicant has been uploaded to the NSW Planning Portal (PAN 114215).

3. The Applicant has subsequently filed the amended modification application with the Court on 28 April 2022.

Orders

10. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. DA-305/2017 is modified in the terms in Annexure A.

3. Development Consent No. DA-305/2017 as modified by the Court is Annexure B.

……………………….

Joanne Gray

Commissioner of the Court

(Annexure A) (161596, pdf)

(Annexure B) (249599, pdf)

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Decision last updated: 04 May 2022