Youssef v Lane Cove Municipal Council

[2023] NSWLEC 1412

Land and Environment Court

New South Wales

Medium Neutral Citation:

Youssef v Lane Cove Municipal Council [2023] NSWLEC 1412

Hearing dates:

Conciliation Conference 28 June 2023

Date of orders:

1 August 2023

Decision date:

01 August 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No DA18/2021 is modified in the terms in Annexure A.

(3) Development Consent No DA18/2021 as modified by the Court is set out in Annexure B.

Catchwords:

APPEAL – Modification application – modification of condition imposed on the grant of a modification – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Jason Youssef (Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

23/75958

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its modification application seeking to modify DA18/2021. The consent to be modified authorised the demolition of existing structures and construction of a residential flat building on Lots 67, 68, 69 and 70 in Deposited Plan 35865, also known as 2-4 Merinda Street and 24-26 Mindarie Street, Lane Cove North (the Site). DA18/2021 was modified on 7 June 2022 under s 4.55(2) of the EPA Act by the Lane Cove Local Planning Panel which imposed various conditions of consent in approving the modification application. One of these conditions was Condition 4(C) which replaced a condition requiring Colourbond fencing between the Site and No 6 Merinda Street, with a condition requiring a 1.8m high double brick cavity fence to provide acoustic protection from the driveway to No 6 Merinda Street. The modification application, the subject of this appeal, made under s 4.55(1A) of the EPA Act, sought to delete Condition 4(C) of DA18/2021.

2. In exercising the functions of the consent authority on appeal, the Court has the power to determine the modification application pursuant to s 4.55(1A) of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 June 2023. I presided over the conciliation conference.

4. Following the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of the modification application on conditions, being the installation of an acoustic wall within the subject property in accordance with agreed specifications. Specifically, the acoustic wall must be 1.8m high and installed within the subject property along the full length of the southern boundary and must comply with the following specifications:

1. A modular acoustic wall system by Modular Walls – Slim Wall or equivalent.

2. Minimum density of 15kg/sqm.

3. The fence is to be free of gaps and penetrations and any gap at the bottom of the barriers is to be minimised as far as practicable.

4. The base of the barrier wall is to be well sealed at the junction where the barrier meets the floor, but still allow proper water drainage.

5. Grey ridge in colour or equivalent.

6. The wall may be reduced in height to 1.5 metres within 1.5 metres from the front boundary.

5. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. 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:

1. the proposed modification is of minimal environmental impact;

2. 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;

3. the modification application was notified in accordance with the requirements of s 4.55(1A)(c) of the EPA Act; and

4. the submissions received have been taken into consideration in the assessment and determination of the application.

7. I have formed the opinion in [6(1)] and [6(2)] above on the basis that the development remains one for demolition of existing structures and construction of a residential flat building on the Site, and the only change proposed by this modification is that of the materials required to construct the southern boundary acoustic fence.

8. 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.

9. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. DA18/2021 is modified in the terms in Annexure A.

3. Development Consent No. DA18/2021 as modified by the Court is set out in Annexure B.

N Targett

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 01 August 2023