Land and Environment Court New South Wales Medium Neutral Citation: Moussa v Georges River Council [2020] NSWLEC 1419 Hearing dates: Conciliation conference on 3 and 17 August 2020 Date of orders: 10 September 2020 Decision date: 10 September 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The appeal is upheld. (2) The modification application MOD2019/0097 to modify development consent No. DA2017/0198, for demolition of existing structure(s) and construction of a part two storey and part three storey dwelling is determined by approving the modifications as set out in the plans and documents listed at Condition 1 in Annexure A. (3) As a consequence of (2) above, Development Consent No. DA2017/0198 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. Catchwords: APPEAL – Conciliation Conference – modification application – works on council land – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979 Roads Act 1993 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Texts Cited: Hurstville Development Control Plan No. 1 New South Wales Department of Planning and Environment, Draft Environment State Environmental Planning Policy New South Wales, Draft Remediation of Land State Environmental Planning Policy Category: Principal judgment Parties: Mustapha Moussa (Applicant) Georges River Council (Respondent) Representation: Counsel: Sarah Wilson (Solicitor) (Respondent) A Karaman (Agent) (Respondent) Solicitors: Georges River Council (Applicant) File Number(s): 2020/35211 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of modification application MOD2019/0097 to modify development consent No. DA2017/0198, which the Court notes was refused by the Georges River Local Planning Panel on 18 December 2019 being a date after the commencement of these proceedings, in relation to Lot 23 Section 10 of Deposited Plan 3230, known as 23 Bay Road, Oatley (the Site) for a new separate driveway requiring the removal of one street tree (Proposed Development) the Appeal being a Class 1 proceedings pursuant to the Land and Environment Court Act 1979 (LEC Act). 2. The Court has the statutory power as consent authority to determine the proceedings pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34AA of the LEC Act between the parties, which has been held on 3 and 17 August 2020. I have presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting development consent subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied as follows: 1. The parties agree that all Contentions raised in the Amended Statement of Facts and Contentions filed on 9 June 2020 have been resolved by the preparation of agreed conditions of consent. 2. Some of the works associated with the construction of the driveway will take place in the road reserve or verge belonging to the Respondent Council (Council) which is adjacent to the Site. Council's road reserve is part of the public road for the purposes of the Roads Act 1993 (Roads Act). Council is the appropriate roads authority with respect to the public road pursuant to the Roads Act. Accordingly, the agreed conditions of consent include a requirement that the applicant obtain activity approval pursuant to s 138 of the Roads Act from the Council for the carrying out of work in, on or over a public road and I find that there is no jurisdictional concern regarding owner's consent regarding the works on Council's land. 3. The Council has complied with the requirements of s 4.55(1A) (a) through (d) of the EPA Act as set out below: 1. Council is satisfied that the proposed modification is of minimal environmental impact; 2. Council is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified; 3. The initial application was notified in accordance with the requirements of Section 2.2 Neighbour Notification and Advertising of Development Applications of the Hurstville Development Control Plan No. 1 (HDCP). Further notification following the amendment of the application before the Court was not required by the HDCP pursuant to subsection 2.2.3.1(b); 4. No submissions were received. 1. Hurstville Local Environmental Plan 2012 (HLEP 2012) is the relevant environmental planning instrument for the Land. 1. The Land is identified as bush-fire prone land in the relevant map included in the Council's bundle of documents at folio 822, certified pursuant to s 10.3 of the EPA Act. Council has complied with the requirements of s 4.14 of the EPA Act in this respect. The parties also drew my attention to consent condition number 46B titled "Compliance with bushfire protection specifications and requirements". 2. The development is permissible in the R2 Low Density Residential Zone, pursuant to the HLEP 2012. The proposed development is consistent with the objectives of the zone. 3. The Parties agree that the development otherwise conforms to all relevant development standards in HLEP 2012. 1. As required by State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), Council has considered whether the land is contaminated as part of the original Development Application (DA2017/0198). As there is no proposed change of use as part of this Application (MOD2019/0097), Council is satisfied the provisions of SEPP 55 are met. 2. As required by State Environmental Planning Policy (Infrastructure) 2007, Council has given written notice to the electricity supply authority for the area in which in which the development is to be carried out. The parties referred to the copy of the letter to Ausgrid dated 19 June 2019 at folio 889 in the Council's bundle and advise that no response was received. 3. The Proposed Development will require the clearing of one tree, identified as T36 and addressed in consent condition number 26, being vegetation to which Part 3 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) applies (having reference to cl 26(1) of the Vegetation SEPP and Appendix 1 of the HDCP). Council may issue a permit for the removal of the tree pursuant to cl 10(1) of the Vegetation SEPP, and the area of vegetation to be cleared does not exceed the biodiversity threshold of 0.25 hectares, being the biodiversity offsets scheme threshold referenced in cl 10(2). 4. Council has considered the matters set out in Part 2 of the Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment together with relevant draft state policies. 1. Having regard to all of the above matters and having considered the documents included in the Council's bundle of documents, I accept and adopt the reasons provided by the parties and find that the jurisdictional prerequisites to the proper exercise of the Court's power to approve the modification application have been met. 2. I am 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 LEC Act. 3. 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. Orders 1. The Court orders that: 1. The appeal is upheld. 2. The modification application MOD2019/0097 to modify development consent No. DA2017/0198, for demolition of existing structure(s) and construction of a part two storey and part three storey dwelling is determined by approving the modifications as set out in the plans and documents listed at Condition 1 in Annexure A. 3. As a consequence of (2) above, Development Consent No. DA2017/0198 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ………………………. E Espinosa Commissioner of the Court Annexure A (201562, pdf) Annexure B (298954, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020