Ashfield Land Pty Ltd v Inner West Council [2020] NSWLEC 1305

Land and Environment Court New South Wales

Medium Neutral Citation: Ashfield Land Pty Ltd v Inner West Council [2020] NSWLEC 1305 Hearing dates: Conciliation conference 30 June 2020 Date of orders: 15 July 2020 Decision date: 15 July 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [11] below Catchwords: MODIFICATION APPLICATION – residential flat building – modification of basement and parking – minor changes to building – conciliation conference – agreement between the parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Ashfield Land Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: D Tyrell (Applicant) (Solicitor) M Jenkins (Respondent) (Solicitor)

Solicitors: McKees Legal Solutions (Applicant) Inner West Council (Respondent) File Number(s): 2019/346191 Publication restriction: No

Judgment 1. COMMISSIONER: This is an application pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify Development Consent DA 2016/276 issued by the Court in proceedings 148379 of 2017, by way of amendments to car parking, ground floor level, levels 1- 5 and western and southern elevations at 379 – 381 Liverpool Road, Ashfield (the site). 2. On 30 June 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the modification application and to modify the development consent in the manner described below. 4. On 1 July 2020 the parties lodged an agreement pursuant to s 34 of the Court Act. 5. 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. The parties' agreement involves the Court exercising the function under s 4.56 of the EP&A Act to grant the application to modify the development consent. 7. The parties have provided the following statement as to matters of jurisdiction: "1. Environmental Planning and Assessment Act 1979 i. S4.56(1)(a) – the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. ii. Notification requirements under the Environmental Planning and Assessment Act 1979 have been satisfied, all submissions have been taken into consideration and Owner's consent has been provided. iii. The matters referred to in section 4.15(1) as are of relevance to the development the subject of the application have been taken into consideration. 2. Ashfield Local Environmental Plan 2013 i. Land Use Table - the land is zoned R3 Medium Density Residential Zone and B4 Mixed Use Zone. The proposed development is permissible with consent. ii. The modifications relate to amendments to carparking and design changes to the previously approved dwellings. The modification application does not seek to vary any development standards and does not result in any non-compliance with the relevant legislation. 3. SEPP 55 - Remediation of Land i. As abovementioned, the modification application amends an approved development. ii. There are no changes that would impact the original consent. iii. The original conditions of consent include conditions regarding the remediation of land which will be retained in the modified consent (Condition 11). 4. SEPP 65 – Design Quality of Residential Apartment Development i. An updated SEPP 65 apartment design guide statement was submitted with the modification application and accepted by the respondent." 1. Having considered the material provided to the Court, I agree with the parties' summary as to the necessary jurisdictional matters and am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. 2. 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' decision. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court orders: 1. The applicant is granted leave to amend the modification application and rely on the amended plans as follows: No. Revision Title Prepared by Amendment Date S4.55-000 B Title Sheet & Drawing Schedule Beta Solutions 30/03/2020 S4.55-10 A Grasscrete Design Intent Beta Solutions 30/03/2020 S4.55-101 B Lower Ground Level 1 Beta Solutions 30/03/2020 S4.55-102 B Ground Level Beta Solutions 30/03/2020 S4.55-303 B Section C-C/ D-D/ E-E/ F-F Beta Solutions 30/03/2020 S4.55-9043 B Landscape Calculations 1 Beta Solutions 30/03/2020 S4.55-9044 B Landscape Calculations 2 Beta Solutions 30/03/2020 S4.55-9047 B Deep Soil Area Calculations Beta Solutions 30/03/2020 PAM01-DA-001 G Landscape Masterplan Sym Studio 20/05/2020 PAM01-DA-002 G Landscape Planting Plan Sym Studio 20/05/2020