Camuglia v Woollahra Municipal Council [2020] NSWLEC 1360

Land and Environment Court New South Wales

Medium Neutral Citation: Camuglia v Woollahra Municipal Council [2020] NSWLEC 1360 Hearing dates: Conciliation conference on 4 August 2020 Date of orders: 13 August 2020 Decision date: 13 August 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that; (1) The Applicant is granted leave to rely on the amended plans set out in Annexure A, subject to the Conditions of Consent set out in Annexure B and in the Consolidated Conditions of Consent in Annexure C. (2) The appeal is upheld. (3) Section 4.55 Modification Application DA2018/512/2 for modifications to the approved fencing under development consent DA512/2018/1 granted by the Respondent on 11 April 2019 be approved subject to the conditions set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Orazio Camuglia (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: C Collett (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/356796 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant appeals against the determination by Woollahra Municipal Council of a modification application concerning conditions of a development consent for alterations and additions to a dwelling at 14 Tivoli Avenue, Rose Bay, which conditions required a reduction in the size of proposed privacy fencing to that which was originally sought in the development application. The modification application was lodged with the Council on 14 June 2019, seeking to delete the conditions that reduced the size of the privacy fencing. It was then approved on 23 July 2019, which resulted in the modification of conditions which relate to the size of the privacy fencing, but did not remove those conditions. The applicant was dissatisfied with this determination and appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [6] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 4 August 2020. I presided over the conciliation conference. 3. Following 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 the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision 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). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modifications concern changes to conditions with respect to the height of and material used for the privacy fencing, and do not change the development in any substantial manner. Further, I am satisfied that the notification requirements of s 4.55(2)(c) have been met, and, consistent with s 4.55(2)(d), I have considered the submissions made with respect to the proposed modification. 4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 5. In making the orders to give effect to the agreement between the parties, 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 4.55(3) and 4.15(1) of the EPA Act. 6. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans set out in Annexure A, subject to the Conditions of Consent set out in Annexure B and in the Consolidated Conditions of Consent in Annexure C. 2. The appeal is upheld. 3. Section 4.55 Modification Application DA2018/512/2 for modifications to the approved fencing under development consent DA512/2018/1 granted by the Respondent on 11 April 2019 be approved subject to the conditions set out in Annexure B.