Zoro Developments Pty Ltd v Northern Beaches Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zoro Developments Pty Ltd v Northern Beaches Council [2023] NSWLEC 1566

Hearing dates:

18 September 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development consent DA127/06 for the construction of a new detached dwelling with double car hard stand, inclinator and landscaping works at 67 Seaforth Crescent, Seaforth, is modified in the terms in Annexure A.

(3) Development consent DA127/06 as modified by the Court, is Annexure B.

(4) Exhibits 4 and 6 are returned, the remaining exhibits are retained.

Catchwords:

APPEAL – modification application – scope of modification confined over the course of the appeal proceedings – parties agree contentions have been resolved

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2021, s 100

Land and Environment Court Act 1979, s 34AA

Manly Local Environmental Plan 2013

Cases Cited:

Zoro Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1349

Texts Cited:

Building Code of Australia

Manly Development Control Plan 2013

National Construction Code

Category:

Principal judgment

Parties:

Zoro Developments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/277514

Publication restriction:

No

Judgment

1. COMMISSIONER: A partially constructed building at 67 Seaforth Crescent, Seaforth, has stood largely undisturbed since the issue of a stop work order in early 2020. The applicant and owner of the land, Zoro Developments Pty Ltd (Zoro) seeks to modify a development consent that applies to the site, which will, in turn, allow works to be carried out to the building. Zoro lodged a modification application with Northern Beaches Council (the Council) on 20 April 2022. Following the expiry of the period after which a modification application is deemed to be refused, Zoro lodged these appeal proceedings, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proceedings were required to be listed for a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on site on 14 March 2023. On that date, I made a determination the proceedings were not to continue to be dealt with under s 34AA(2). The proceedings were then listed by the Registrar for a court hearing on 18 September 2023.

3. The proposed modification is to the development consent (DA127/06) granted on 15 October 2007 for the construction of a new detached dwelling with double car hard stand, inclinator and landscaping. The modification application was amended prior to the hearing, and is now confined to changes to the inclinator landing and stair access on the western side of the dwelling, a proposal for a window on the western elevation in lieu of the door approved by the consent, and the introduction of…