COMMISSIONER: This is an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Inner West Council (Council) of an application to modify a development consent granted by the Court on 5 July 2013. The Court file number in regard to this consent is 10351 of 2013 and Council's reference is DA 201200276.
The original development consent was for three attached dwellings with basement parking. I note here that the consent orders were made imposing a deferred commencement condition. Council's Bundle of Documents in this matter filed on 18 June 2021 (Council's Bundle) indicates that an operative consent was issued on 4 June 2014 (folio 14). The bundle also references a modification to the Court determined consent dated 13 July 2015 (ibid).
The modification application is made under s 4.55(2) of the EPA Act. It is referred to by Council as MOD 20200416 and is described as follows: "alterations and additions to the roof terrace to create an enclosed attic level of the dwelling on the land now known as 2 Crown Street, St Peters" (see agreed conditions at Annexure A). In consideration of the original consent, I understand 2 Crown Street to be the northernmost of the three attached dwellings originally approved under DA 201200276.
The Court arranged a conciliation conference between the parties under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was held on 29 June and 2 August 2021, at which I presided. Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy (April 2021), under the Microsoft Teams platform. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
The parties' decision involves the Court exercising the consent authority's function under s 4.55(2) of the EPA Act to modify the consent.
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.
There are preconditions to the exercise of the power to modify the consent which I work through now:
1. Section 4.55(2)(a) of the EPA Act requires me to be satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)". A Joint Expert Report (JER) was prepared by town planners G Hugo and W Nino and was filed on 24 June 2021. In the JER (p 3), the experts agree that the proposal would create an additional 14.4m2 of gross floor area (GFA). In considering the "substantially the same" question I have had regard to Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity). The provision for this proposed upper level enclosed space above the bedroom level (the bedroom level is called the "first floor" in plans, but the basement level is partly aboveground) is reasonably seen as involving something other than "radical transformation" of the development for which consent was originally granted (Agricultural Equity at [12(7)]. In essence the development after modification is essentially and materially the same as that originally approved (Agricultural Equity at [12(5)].). I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. In turn I am satisfied in regard to s 4.55(2)(a) of the EPA Act.
2. I note that s 4.55(2)(b) does not apply.
3. Having regard to s 4.55(2)(c) and (d), I am satisfied with the advice of Council that proper notification and consultation has occurred. I have read written objections submitted to Council (as provided to me) and there were two oral objections (from or on behalf of residents to the immediate west of the site) which were heard at the opening to the conciliation conference (via MS Teams platform). The jurisdictional requirement is that matters raised in submissions "[be] considered" and this has occurred.
4. Section 4.55(3) of the EPA Act requires me to take into consideration: (a) relevant matters under s 4.15(1) of the EPA Act, and (b) the reasons given by the consent authority for the grant of the original consent. I have reviewed the judgment of Commissioner O'Neill in regard to the original consent (Geeves, Kent v Marrickville Council [2013] NSWLEC 1117) which references the agreed consent orders of the parties but also draws its own conclusions in regard to that application. I have also reviewed the "reasons" nominated in the conditions to that consent.
5. I have also taken into consideration relevant matters in s 4.15(1) of the EPA Act. Assisting me here was Council's Bundle which included Council's assessment report in regard to the matter (folios 138-181), Council's Statement of Facts and Contentions (SOFAC) in this matter filed on 29 March 2021 which referenced pertinent environmental planning instruments and development control plan provisions (section 4) and the JER.
6. While I have considered the relevant statutory controls more generally, I will mention in regard to s 4.15(1)(a)(i) of the EPA Act, that the site is zoned R1 General Residential under Marrickville Local Environmental Plan 2011 (MLEP) (SOFAC p 2). The proposal is permissible in the zone and I have regard to the zone objectives. I note the advice in the JER (p 3) and take into consideration that the proposal fails to comply with the numerical standard relating to floor space area under cl 4.4 of MLEP. In jurisdictional terms, it is clear that a consent can be modified notwithstanding contravention of development standards (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163).
7. In regard to s 4.15(1)(d) of the EPA Act, I note (see also [7(3)]) that the requirement to take into consideration submission made has been addressed.
8. Finally, in regard to procedure, I note that the Applicant proposed amendments to the original plans accompanying the modification application in order to address certain concerns raised by Council. In turn, mindful of cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), I was advised by Council that it had agreed, to the applicant amending the modification application. I was subsequently advised of the lodgement of the amended plans on the NSW Planning Portal (by email on by Council's solicitor dated 6 August 2021).
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that I am not required to, nor have I, considered the merits of the application in coming to this position.
[2]
Orders
The orders of the Court are:
1. The appeal is upheld.
2. Modification Application No. MOD/20200416 to modify Development Consent DA201200276 originally granted by the Land and Environment Court on 5 July 2013 to demolish the two single storey dwelling houses and erect a three x two storey dwellings over basement garages with roof top terraces and associated landscaping, modified by Marrickville Council (now Inner West Council) on 13 July 2015, and so as to further modify the Development Consent to approve alterations and additions to the roof terrace to create an enclosed attic level of the dwelling on the land now known as 2 Crown Street, St Peters (Lot 3 DP 1213306) is approved subject to the conditions as modified in Annexure "A".
3. As a consequence of the modification, Development Consent No. DA201200276 is subject to the consolidated, modified conditions of consent set out in Annexure "B".
4. Each party to pay its own costs of the proceedings.
[3]
Commissioner of the Court
Annexure A (178297, pdf)
Annexure B (316884, pdf)
Architectural Plans (2174613, pdf)
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 August 2021