Wright v Inner West Council

[2024] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wright v Inner West Council [2024] NSWLEC 1231

Hearing dates:

Conciliation conference held on 23 and 24 April 2024

Date of orders:

03 May 2024

Decision date:

03 May 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA/2022/1149 is modified by consent in the terms set out in Annexure A.

(3) Development Consent DA/2022/1149 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – improved amenity to an existing residential building – Torrens title subdivision plan correction - conciliation conference – agreement between the parties – orders

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021, ss 98, 113

Inner West Local Environmental Plan 2022

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

James Alex Wright (First Applicant)
Natalie Nicole Wright (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Smith (Applicants)
S Turner (Solicitor)(Respondent)

Solicitors:
McKees Legal (Applicants)
Inner West Council (Respondent)

File Number(s):

2023/314380

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal relating to a Modification Application MOD/2023/0209 (MA) seeking to amend conditions attached to Development Consent DA/2022/1149 (the Consent), relating to alterations and additions to an existing residential dwelling and Torrens title subdivision of one lot into two lots on Lot 100 Deposited Plan 1286139, also known as 5 Roberts Street, St Peters (the site).

2. The Consent was approved by Inner West Council (hereafter the Council) on 17 April 2023, which granted a two lot Torrens title subdivision on the site, and demolition of a carport and shed. The subdivision has not yet been registered and demolition has not been effected.

3. The MA was lodged with Council on 12 July 2023 and notified to nearby properties between 2-16 August 2023. The MA was determined by Council on 20 September 2023, which amended certain conditions, although refused the deletion of Condition 2, relating to the provision of onsite parking.

4. The Applicants appealed the refusal to delete Condition 2, as described in the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Land and Environment Court (the Court) agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act), starting with an onsite view.

6. At the conciliation conference, the Council agreed for the Applicant to amend the MA, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended MA reflects the agreed amendments, including demolition of existing structures to resolve an encroachment, provision of onsite parking, and improved outdoor space and solar access for residents. The MA also legally corrects the subdivision plan to ensure the site is properly defined, as described in the most recent survey.

7. 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. 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. The parties' decision involves the Court exercising its power under s 4.55 of the EPA Act, to modify the Consent, as described in Annexure A, with consolidated conditions that relate to the Consent described in Annexure B.

8. The requirements of s 4.55(1A) of the EPA Act are considered in granting consent to the modification of the Consent. The modifications sought are substantially the same as originally approved under the Consent, specifically with regards to the built form of the existing dwelling and subdivision pattern, causing no further environmental impact. The modifications are agreed provide for a building and parking that has improved amenity and functionality. The requirements of ss 4.55(1A)(a) and (b) are satisfied.

9. The Council confirms that the notification of the MA was made, pursuant to the requirements of the Marrickville Development Control Plan 2011, with two submissions received. The submissions from residents have been considered in the Council’s merit assessment of the MA and the agreed conditions, including addressing an adjoining resident amenity. Sections 4.55(1A)(c) and (d) of the EPA Act are satisfied.

10. The parties agree that the amendments described in the amended MA address all relevant jurisdictional requirements, and that they are consistent with the provisions of the Inner West Local Environmental Plan 2022. In satisfaction of the requirements of s 4.15(3) of the EPA Act, the Consent remains substantially unchanged and the MA provides an improved amenity for residents, being consistent in the streetscape. The requirements of s 4.55(3) are addressed.

11. I am satisfied, based on the evidence before the Court, that pursuant to s 4.55 of the EPA Act, there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. I have considered the jurisdictional assessment provided by the parties and evidence of the experts.

12. All works and actions relied on by the MA are specific to the site and the Applicants are the owners of the site, pursuant to s 98(1)(a) of the EPA Reg.

13. 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.

14. The Court notes that:

1. The Inner West Council, as the relevant consent authority, has agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA/2022/1149, as follows:

1. Plan showing proposed subdivision, dated 7 March 2024, Drawing number 211206-002B.

2. Architectural Plans prepared by Blu Print Designs, Revision B, dated 23 April 2024:

1. DA01 – Site, Roof & Sediment Control Plan;

2. DA02 – Demolition Plan

3. DA03 – Ground Floor Plan;

4. DA04 – Roof Plan;

5. DA05 – Calculations Plans;

6. DA06 – South East Elevations & North West Elevation;

7. DA07 – South West & North East Elevations;

8. DA08 – Sections

2. The Applicant has filed the amendments to the MA on 24 April 2024.

15. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA/2022/1149 is modified by consent in the terms set out in Annexure A.

3. Development Consent DA/2022/1149 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Sarah Bish

Commissioner of the Court

23.314830 Annexure A

23.314830 Annexure B

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Decision last updated: 03 May 2024