Vigor Master Pty Ltd V Lane Cove Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9
Land and Environment Court Act 1979 (NSW), s 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 113
Lane Cove Local Environmental Plan 2009, cl 4.4, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Category: Principal judgment

Parties: Vigor Master Pty Ltd (Applicant)
Lane Cove Municipal Council (Respondent)

Representation: Counsel:
J Doyle (Applicant)
A Seton (Solicitor)(Respondent)
Solicitors:
Marsdens Law Group Council (Respondent)

File Number(s): 2025/273676

Publication restriction: No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Vigor Master Pty Ltd (the Applicant) against the actual refusal, by the Lane Cove Local Planning Panel, of an application to modify the development consent granted by the Respondent on 29 January 2013 (and modified on 3 October 2013) to development application No. DA197/2012. The modification application was lodged with Lane Cove Municipal Council (the Respondent), on 7 May 2025. On 9 July 2025, the Respondent’s Local Planning Panel, refused the modification application.

2. The Development Application seeks Development Consent for demolition of an existing dwelling house and construction of a two-storey dwelling house with double garage. The proposed development is to take place at 8 Kullah Parade, Lane Cove North. The proposed development is on land legally described as Lot 117 in DP 36362.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 17 November 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

8. I agree with the parties that the development to which the consent, as modified, relates is the same or substantially the same development as the development for which consent was originally granted. In that regard, the development remains a two-storey building that is to be used as a single dwelling house that is contained within a similar envelope. The changes at the upper level of the building include:

(a) A change to the roof form; (b) A balcony that faces Kullah Parade with privacy screens on the eastern and western side of the balcony; (c) Additional floor space.

2. Whilst the modification increases the gross floor area that may be used, it does so in a way that visual and other impacts on adjoining properties, are minimal.
3. The modification application does not need to be accompanied by a written request, pursuant to cl 4.6 of Lane Cove Local Environmental Plan 2009 (LCLEP), to vary the Floor Space Ratio development standard contained in cl 4.4 of the LCLEP. Notwithstanding the non-compliance, I am satisfied that the parties have given appropriate consideration to the proposed floor area of the development.
4. The proposal was notified in accordance with the Respondent’s community participation plan on 7 May 2025. Two submissions were received and considered by the parties.

State Environmental Planning Policy (Sustainable Buildings) 2022

8. The modification application is accompanied by the requisite BASIX certificate.

9. 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’ agreement.

10. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

11. The Court orders that:

12. The Court, exercising the functions of the consent authority under s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment of the application to modify the development consent granted to development application No DA197/2012 to be an application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (NSW) and to rely upon the plans set out in Condition 1A of Annexure A.

13. The appeal is upheld.

14. Development Consent No DA197/2012 relating to the land at 8 Kullah Parade, Lane Cove North is modified in the terms in Annexure A.

15. Development Consent No DA197/2012 relating to the land at 8 Kullah Parade, Lane Cove North, as modified by the Court is Annexure B.

Stuart Harding

Acting Commissioner of the Court

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Annexure A (225 KB, pdf)

Annexure B (364 KB, pdf)