COMMISSIONER: These proceedings are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Hunter's Hill Council (Council) of an application to modify a development consent. The Modification Application was made pursuant to s 4.55 of the EPA Act and relates to development for the purposes of a detached single dwelling on land at 66 The Point Road, Woolwich (site) which also borders the Lane Cove River.
On 27-28 July and 2 August 2021, the Court arranged a mandatory conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. Proceedings were conducted under the guidance of the Court's COVID-19 Pandemic Arrangements Policy (April 2021), using the Microsoft Teams platform. 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 them. The decision agreed upon would have the Court uphold the appeal and grant consent to the modification application in accordance with agreed conditions.
If the parties' decision is one that the Court could have made in the proper exercise of its functions, under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties' decision. I will first indicate further particulars of the application, then turn to jurisdictional questions.
I rely on Council's Statement of Facts and Contentions filed with the Court on 22 February 2021 and Council's bundle of documents filed 23 July 2021 for certain particulars which follow. The Modification Application (reference number 2008-1138-1) seeks to modify Development Consent No. 2008-1138 (the Consent) which was granted by Council on 7 December 2009 under a deferred commencement condition. The Consent became operational on 25 March 2010. The Consent was for major alterations and additions, including partial demolition, to create a new dwelling house (converting a dual occupancy to a single dwelling) with tennis court and associated landscaping, as well as two pools and spas and car parking in a basement level garage at 66 The Point Road, Woolwich (site).
Details on the nature of the proposed modifications to the Consent were described in a bundle of documents provided to the Court by the Applicant on 14 July 2021. In particular a letter from the Applicant dated 25 May 2021 included a schedule of changes to plans (generally aligning with those listed in the SOFAC at Sections 1.4 and 1.5). Then during the course of conciliation and in response to Council contentions, further changes were agreed by the Applicant. I am advised by the parties that the requirements of cl 121B of the Environmental Planning and Assessment Regulation 2000, with respect to amendments of modification applications have been addressed, in that: the applicant has provided details of the nature of the changes to Council, Council has agreed to the amendment to the modification application and the amendment particulars have been lodged on the NSW Planning Portal (Agreed advice from the parties dated 9 August 2021, p 3).
It is not necessary for me to document every particular here, but I will briefly outline what amounted to a large number of proposed modifications to the Consent including: (1) new front stone street wall treatment (including partial encroachment on Council road reservation) and both car and pedestrian entry detailing, (2) increased excavation to enlarge the development footprint, (3) various other external works including previously approved grass tennis court replaced with synthetic grass and various changes to terrace slabs (including works closer to side boundaries), changes to paths and boundary fencing, (4) various internal modifications including a change to the lift core location affecting detailing on each level, various room enlargements and new rooms and wall elements as well as changes to the basement parking, (5) various changes to the exterior of the building including changes to windows, balconies and planter box arrangements, addition of chimneys (related to a boiler flue and kitchen exhaust), lowering of an approved north-facing parapet, and (6) various changes to landscape detailing at all levels.
It is noteworthy that the Modification Application was originally made under s 4.55(1A) of the EPA Act. The powers under s 4.55(1A) would require a positive finding of satisfaction that the proposed modification is of minimal environmental impact. However, it is clear that s 4.55 of the EPA Act does, otherwise, entertain the possibility of the modification of a consent if there is more than minimal environmental impact were, on the merits, a consent authority find it appropriate to do so. In Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204 at [34]-[35], the question of the application of power under s 4.55(2) in instances where a modification application was originally made under s 4.55(1A) was considered by Acting Commissioner Clay, who in part relied on the Court of Appeal findings in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31; [1996] NSWCA 365, which included at (at p 85):
"It is clear law that 'a mistake in the source of the power works no invalidity'". …
I agree with Acting Commissioner Clay, that power is available to modify a consent in this instance under s 4.55(2) of the EPA Act, provided any pre-conditions to the exercise of that alternate source of power have been fulfilled. I consider the pre-conditions to the application of power to modify a consent at s 4.55(2) of the EPA Act as follows:
1. Section 4.55(2)(a) 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)". I note in accordance with normal Court orders a Joint Expert Report (JER) was prepared by town planners J Vescio and A Davis and filed on 21 July 2021. The report noted the obligations of the experts to the Court in accordance with the Expert Witness Code of Conduct under the Uniform Civil Procedure Rules 2005. The town planning experts found positively in regard to the question posed at s 4.55(2)(a) of the EPA Act (JER par 1.4.1). I accept this position, noting at a base level that the original consent involved alterations and additions to a dwelling house, as does this application. While the changes are numerous, considered together and qualitatively (including the changes between the original consent and that with modification at the site frontage, to the external building arrangements, in regard to excavation, in regard to internal configuration and hard and soft landscape arrangements), involve something other than "radical transformation" (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity) at [12(7)]). That is, to say the essence of the development after modification is essentially and materially the same as that originally approved (Agricultural Equity at [12(5)]). 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 the parties that proper notification and consultation has occurred. I have been provided with written submissions (including in Council's bundle) and there was an oral objection (from the owner of the property to the immediate west) which was 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. There are no "reasons" nominated, as such, in the existing conditions of consent. In order to make reasonable endeavours to respond to the requirements of s 4.55(3), Council undertook to review its files in regard to the matter and obtained the minutes of the Council meeting approving the application. I am advised the minutes did not contain any reasons. I accept the advice of the parties that as there are no reasons given for the decision "the Court cannot (and is therefore not required to) take into account reasons under section 4.55(3)" (Agreed response of the parties provided to the Court and dated 9 August 2021).
5. I have also taken into consideration relevant matters in s 4.15(1) of the EPA Act. Assisting me here was Council's SOFAC which referenced pertinent environmental planning instruments and development control plan provisions (section 4), the JER and a statement of environmental effects prepared by Mr Vescio and provided to the Court on 14 July 2021 as part of the Applicant's conciliation conference bundle (behind Tab 1).
6. I will mention in regard to s 4.15(1)(a)(i) of the EPA Act, that the site is zoned R2 Low Density Residential under Hunters Hill Local Environmental Plan 2012 (HHLEP) and is located within 'The Peninsula' Heritage Conservation Area and the front of the site contains a locally listed heritage item (SOFAC p 4). The proposal is permissible in the zone and I have regard to the zone objectives as nominated in cl 2.3 of HHLEP. I note the advice in the JER (p 6) and take into consideration that, with the tennis court changes, the proposal fails to comply with the numerical standard relating to landscape area under cl 6.9 of the HHLEP. In jurisdictional terms, I accept the advice of the parties that the Modification Application may be approved notwithstanding contravention of development standards. Appropriately, the parties referred me to the findings of Pepper J in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [34] and the authorities cited in that paragraph.
7. In regard to s 4.15(1)(d) of the EPA Act, I again note (see also [7(3)]) that the requirement to take into consideration submission made has been addressed.
According to Council, nearly all of the works proposed in the Modification Application have been completed or commenced on the site, and it is not contested that the Court may lawfully approve a modification application retrospectively (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240 at [33]).
Further, I accept the advice of the parties that the modification application meets the requirements of cl 115(1) of the Environmental Planning and Assessment Regulation 2000 in regard to owners consent, including in regard to the front wall encroachment onto the road reserve.
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.
The Court orders:
1. The appeal is upheld.
2. Development Consent No. 2008-1138-1 is modified in the terms in Annexure A.
3. Development Consent No. 2008-1138-1 as modified by the Court is Annexure B.
[2]
Commissioner of the Court
Annexure A (154397, pdf)
Annexure B (207971, pdf)
Architectural Plans (3602920, pdf)
Landscaping Plans (3114144, pdf)
[3]
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Decision last updated: 23 August 2021