Watkins v Waverley Council

JUDGMENT

1. 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).
2. 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).
3. 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.
4. 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 The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022.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.
5. 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.
6. 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.