Land and Environment Court New South Wales Medium Neutral Citation: Shamieh v Waverley Council [2020] NSWLEC 1586 Hearing dates: Conciliation conference on 11 November 2020 Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: See final orders at [8] below. 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: Belinda Barbara Shamieh (Applicant) Waverley Council (Respondent) Representation: Counsel: S Hale (Solicitor) (Applicant) M Hanna (Solicitor) (Respondent) Solicitors: Madison Marcus (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2020/44459 Publication restriction: No Judgment 1. COMMISSIONER: On 4 April 2019, the Court granted development consent to development application (2018/59531) for the demolition of a dwelling and construction of a part 2 and 3 storey dwelling house with garage and pool at 20 Loombah Road, Dover Heights (original consent). 2. The approved development is currently under construction, with excavation being undertaken. On 18 February 2020, the applicant, made application to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the following modifications to the original consent: 1. Condition 1 to refer to the amended plans showing following changes: 1. Level 0 – internal reconfiguration to change laundry to bathroom; 2. Level 1 – extension by 600mm north to the kids retreat, bathroom and bedroom (additional 5.62m2) internal reconfiguration changes; 3. Level 2 – extension by 600mm north to allow for extension of kitchen scullery (additional 3.52m2) and a new small balcony (600-1000mm) along the northern and western sides respectively. Modifications to the pool shape and replacement landscaping on western side with trafficable area. Extension of balcony to the south of living area. Internal reconfiguration of kitchen, bathroom, laundry and outdoor deck; 4. Roof plan – additional skylight over the stairwell; and 5. Elevations – minor changes to approved windows. 1. Delete Condition 2(a) (General Modifications), which reads: "The proposal shall be amended as follows: (a) The trafficable area of the Level 2 south-western garden adjacent to the living room is to be limited in size to a maximum of 10 square metres inclusive of a maximum depth of 2 metres measured from the southern extent of the living room wall / door and a maximum width of 5 metres measured from the western edge of the swimming pool wall. This amendment will require the corresponding increase of the width of the planter beds along the western and southern ends of the garden as well as increase in the extend of the solid section of the southern wall of the living room. Details of the amended design are to include the width, height and soil depth of the raised planter beds as well as planting within the beds." 1. Delete Condition 5 (Vegetation Management Plan (VMP)), which reads: "A Vegetation Management Plan (VMP) shall be prepared and submitted for the written approval of the Council's Executive Manager Building Waverley detailing on-going management of the native bushland and flora over the rear of the property (all lands northeast of the driveway to the northern-most boundary). The plan must be prepared by an Ecologist who is a member of the Ecological Consultants Association of NSW. The report must be implemented for a minimum of 15 years with a review by qualified Ecologist every 5 years. The Vegetation Management Plan (VMP) must be approved in writing prior to the lodgement of any Construction Certificate. An annual monitoring report must be produced by a qualified Ecologist and submitted to Waverley Council's Biodiversity Officer (or equivalent), every year from the date of DA Consent. The report must assess the following Key Performance Criteria through the sampling of one permanent 10m x 10m flora plot. (a) Confirmed commissioning a qualified Bush Regenerator to undertake the weed control and native vegetation restoration works (b) Ensure exotic flora cover remains below 2% cover of the rear of the property at all times (c) Elimination of all Priority Weeds (as identified under the NSW Biosecurity Act) (d) Undertake the vegetation restoration works (e.g. planting of known provenance locally indigenous native stock) to ensure native vegetation is restored and maintained to the equivalent PCT/BVT benchmark for: i. Species Composition within one year (and at least four plants of each species to be present) ii. Structure (native canopy, midstorey and ground cover) within three years iii. Coarse woody debris within one year iv. Litter cover within five years For each year that any of the above criteria are not met, the VMP will be extended for another two years." 1. Delete Condition 6 (Microbat Management Plan (BatMP)), which reads: "A Microbat Management Plan (BatMP) shall be prepared and submitted for the written approval of the Council's Executive Manager Building Waverley that details installation and on-going management of the potential habitat for threatened Microbats on the property. The plan must be prepared by a recognised expert in Microbat Ecology as proven through the holding of at least one relevant scientific publication in the peer-reviewed literature. The Microbat Management Plan (BatMP) must be approved in writing prior to the lodgement of any Construction Certificate. The report must be implemented for a minimum of 15 years with a review by qualified Microbat Ecologist every 5 years. An annual Microbat monitoring report must be produced by a qualified Ecologist and submitted to Waverley Council's Biodiversity Officer (or equivalent), every year from the date of DA Consent. The report must be guided by a site visit by a qualified Ecologist who must check each Microbat structure for inhabitants and condition. The report must assess the following Key Performance Criteria: (a) Permanent installation of at least six artificial Microbat roost structures, three to be anchored on the eastern side of the house and three anchored on the bare face of the sandstone wall using industry recognised methods OR alternative bat habitat as guided by the recognised expert. (b) Ensuring each roost structure is in condition and not absent, damaged or falling off. For each year that any of the above criteria are not met, the BatMP will be extended for another two years." 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 November 2020. I presided over the conciliation conference. 2. 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 the Court upholding the appeal and modification of the original subject to the agreed conditions. 3. 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(8) of the EPA Act. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 4. In that regard, I note that the application for modification was notified by the Council in accordance with s 4.55(2)(b) of the EPA Act on 25 March 2020 for 14 days and no submissions were received. The Council also informs me that it is satisfied, subject to the imposition of the agreed conditions, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. After a comparison of the modified development and the original consent from both a qualitative and qualitative perspective I am also satisfied as required by s 4.55(2)(a). 5. Accordingly, as the parties' decision is one that the Court could have made in the proper exercise of its functions, I now dispose of the proceedings under s 34(3) of the LEC Act, in accordance with that decision. 6. The Court orders that: 1. The appeal is upheld. 2. The following modifications to Development Consent No. 2018/59531 are approved: 1. Condition 1 to be amended to reflect the following plans: Drawing No. / Rev Drawing Title: Date: CC.01 C Site Plan 3 July 2020 CC.02 C Level 0 Plan 20 February 2020 CC.03 B Level 1 Plan 4 February 2020 CC.04 C Level 2 Plan 3 July 2020 CC.05 C Roof Plan 3 July 2020 CC.06 C Section A-A 3 July 2020 CC.07 C West Elevation 3 July 2020 CC.08 C East Elevation 3 July 2020 CC.09C North & South Elevations 3 July 2020 CC.15 C Pool Set-out Plan 3 July 2020 1. Condition 2(a) to be deleted. 2. Condition 6 to be deleted. 1. Application to modify Development Consent No. 2018/59531 is approved subject to the consolidated conditions at Annexure "A". …………………… S Dixon Senior Commissioner of the Court Annexure A (237765, 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: 30 November 2020