Land and Environment Court New South Wales Medium Neutral Citation: Roth v Council of the City of Sydney [2020] NSWLEC 1537 Hearing dates: Conciliation conference on 27 October 2020 Date of orders: 06 November 2020 Decision date: 06 November 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court are: (1) The appeal is upheld. (2) Development Consent D/2016/1455 is modified in accordance with Modification Application No. D/2016/1455/D, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Gunther James Roth (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: J Palmer (Solicitor) (Applicant) M Mallos (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2020/150285 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against conditions of consent imposed on the approval issued by the Council of the City of Sydney (the Council) for Modification Application No. D/2016/1455/D for changes to the approved development (the proposal) at 10 Martin Road, Centennial Park (the site). The proposal includes changes to the landscaping and front stairs in the front setback, and changes to glazing and additional privacy screens on the north-eastern elevation of the main bedroom. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 October 2020. I presided over the conciliation conference. The conciliation conference was conducted via Microsoft Teams. 3. Two resident objectors gave evidence during the conciliation conference. Another resident objector's evidence was presented by the Council as a written objection. The concerns of the resident objectors can be summarised as: * For over 32 years, there had been no changes to the rolling lawn at 10A and that form continues down the street to 22-24 Martin Road. * The north wall, now along the new garden bed in No 10A, rises to about 2m, from the front garden of 8 Martin Rd, which contrasts with the former gently rolling lawn. * The amended proposal should have been disclosed to the resident objectors. * The claimed justification for the front lawn was more space for family and children, and yet since completion of that front garden and lawn earlier this year it has not been used. * The applicant's own material refers to the capacity of the pre-existing axle pathway in the front setback as having "high heritage significance" and it could readily be reconfigured. * The proposal overlooks the rear yard of 8 Martin Road and the condition imposed on the original consent deleting the balcony off the main bedroom should be retained. 1. 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. 2. 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 4.55(2) of the EPA Act to modify the development consent. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act and cl 5.10 of the Sydney Local Environmental Plan 2012 (LEP 2012). 4. The Council filed a statement of reasons, at Annexure B, dealing with the jurisdictional pre-requisites and explaining why the Council was prepared to enter into a s 34 conciliation agreement with the applicant. I accept the Council's submission that the proposal was notified in accordance with s 4.55(2)(c) of the EPA Act and I have considered those submissions made concerning the proposed modification of the development consent, pursuant to s 4.55(2)(d) of the EPA Act. 5. The site is zoned R2 Low Density Residential pursuant to LEP 2012 (Land Zoning Map Sheet LZN_024 of LEP 2012). The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The site is within a heritage conservation area "Martin Road C8" (HCA) (Pt 2 Sch 5 to LEP 2012 and Heritage Map Sheet HER_024 of LEP 2012). I am satisfied that the proposal maintains the contribution made by the existing dwelling and its setting to the HCA, because the modification provides for an interpretation of the original front axial path from the street to the front verandah and re-establish the visual connection between the front gate and the front verandah, allowing the front landscaped setback to be seen from the public domain. This aspect of the proposal will maintain the contribution made by the existing dwelling and its setting to the HCA. 2. I am satisfied that the consent, as modified by the proposal, is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, pursuant to s 4.55(2)(a) of the EPA Act, because the proposal is limited to minor changes to the details of the original consent and does not change the form or character of the originally approved development. Section 4.55(2)(b) of the EPA Act does not apply to this application. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent D/2016/1455 is modified in accordance with Modification Application No. D/2016/1455/D, subject to the consolidated conditions of consent at Annexure A. _____________ Susan O'Neill Commissioner of the Court Annexure A (250287, pdf) Annexure B (92518, 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: 06 November 2020