COMMISSIONER: This appeal relates to the Applicant's modification application DA-178/2021/A (Modification Application) for the modification of development consent DA-178/2021 granted by the Waverley Local Planning Panel on 22 September 2021 (Consent).
The Consent relates to the land described as Lot 47 DP 10771 known as 13 Thompson St Tamarama (Site). The Consent grants development consent for the demolition of the existing dwelling on the Site and the construction of a new three-storey dwelling with integrated double garage and a new swimming pool and deck at the rear (Proposed Development).
The Consent included conditions which required the Applicant to make a number of design changes to the Proposed Development. In broad terms, the Modification Application seeks approval to modify the Consent to either delete or amend some of these design changes.
The Modification Application was amended on 17 June 2022 with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made, but not finally determined, before that date: 2021 Regulation, Sch 6 cl 3. The Modification Application was made before, but had not been finally determined by, 1 March 2022. The EPA Regulation therefore continues to apply to the Modification Application.
As amended, the Modification Application seeks to modify the Consent by altering the internal layout of the proposed dwelling, altering floor levels and the level of the rear ground floor deck, modifying windows, carrying out additional excavation and making various other minor changes to the Proposed Development.
The Modification Application was made to the Council on 4 January 2022. When the Modification Application had not been determined by the Council within the period after which it was taken to have been refused, on 18 February 2022 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.55(1A) of the EPA Act.
The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 16 and 17 June 2022. I presided over the conciliation conference.
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 would be acceptable to the parties. The signed agreement was filed on 17 June 2022 and was supported by an Applicant's Statement - Jurisdictional Prerequisites, provided by the parties on the same date.
The parties' agreement involves the Court modifying the Consent generally in the following ways:
1. Planter box to be built 2.8m from the inside face of the existing eastern boundary wall;
2. The planter box is to extend from the boundary on the North Eastern corner boundary to the edge of the approved building as shown marked up on ground level plan;
3. The terrace level to be at RL33.3, as per the Modification Application plans;
4. All planting contained within the planter box is to not grow to a height greater than the boundary wall;
5. The existing Angophora costata (known as Tree 1) is to be retained;
6. All other trees and shrubs along the eastern boundary are to be removed; and
7. The clerestory roof element is to be rectangular and reduced in height by 200mm.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:
1. The appeal was brought pursuant to s 8.9, and was made within the time required by s 8.10 of the EPA Act.
2. The Modification Application is made with the consent of the owner of the Site, in accordance with s 4.55(1A) of the EPA Act and cl 115(1)(h) of the EPA Regulation.
3. I am satisfied that the proposed modification is of minimal environmental impact, this being the test required by s 4.55(1A)(a) of the EPA Act. While raising the height of the deck has the potential to impact on the privacy of the neighbouring property at 15 Thompson St, I am satisfied that the amended proposal, which substantially increases the non-trafficable garden area along the eastern boundary wall, will reduce any such impact to a minimal level.
4. I am also 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 was modified, this being the test required by s 4.55(1A)(b) of the EPA Act. A comparison between the originally approved development and the development as proposed to be modified demonstrates that there is no radical transformation of the development, and the essence of the development remains the same: Arrage v Inner West Council [2019] NSWLEC 85 at [27].
5. The notification requirements of s 4.55(1A)(c) of the EPA Act have been met. The Modification Application was notified to residents in the local area between 14 and 28 January 2022. Six submissions were received. In addition, oral evidence was given by the closest neighbours on 16 June 2022. I am satisfied that these submissions have been taken into account by the parties in reaching their agreement. The Modification Application has been amended to respond to the objectors' concerns including in relation to privacy from the windows in the eastern elevation, changes to the ground floor terrace and the retention an Angophora costata located to the north of the ground floor terrace known as Tree 1.
6. Clause 115(6) of the EPA Regulation provides that a modification application under s 4.55(1A) of the EPA Act must be accompanied by the "appropriate BASIX certificate" if it relates to development for which the development application was required to be accompanied by a BASIX certificate. Clause 115(7) provides, relevantly, that if the current BASIX certificate is no longer consistent with the proposed development, the appropriate BASIX certificate is a new BASIX certificate to replace the current BASIX certificate. The Modification Application is accompanied by a new BASIX certificate number 1193925S_02 prepared by Efficient Living Pty Ltd dated 17 December 2021, which replaces the BASIX certificate which accompanied the original development application.
As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement.
The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.
The Court notes:
1. That the Respondent as the relevant consent authority has agreed, under clause 121B(1) of the EPA Regulation, to the Applicant amending the Modification Application.
2. That the Respondent has uploaded the amended application on the NSW planning portal on 17 June 2022.
3. That the Applicant filed the amended application with the Court on 17 June 2022.
The Court orders that:
1. The appeal is upheld.
2. Modification application DA-178/2021/A is approved and development consent DA-178/2021 is modified in the terms set out in Annexure A.
3. As a consequence of the modification, development consent DA-178/2021 is subject to the consolidated, modified conditions of consent set out in Annexure B.
[2]
A Bradbury
Acting Commissioner of the Court
Annexure A (230737, pdf)
Annexure B (369795, pdf)
[3]
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Decision last updated: 22 June 2022