Land and Environment Court New South Wales Medium Neutral Citation: Hunter v Northern Beaches Council [2021] NSWLEC 1093 Hearing dates: Conciliation conference on 9 February 2021 Date of orders: 24 February 2021 Decision date: 24 February 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court are: (1) The applicant is granted leave to amend the application to rely on the Biodiversity Assessment Report dated 8 February 2021. (2) The appeal is upheld. (3) Modification Application No. MOD2019/0639 to modify Development Consent 2018/2027 for alterations and additions to an existing dwelling house at 15 Addison Road, Manly, to allow for the construction of a sandstone wall and lift and the addition of external doors to the existing boatshed, by deleting Condition 8 and amending Condition 18 of the Development Consent, is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – deletion and amendment of conditions of consent – conciliation conference – agreement between the parties Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 2013 State Environmental Planning Policy (Coastal Management) 2018 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Category: Principal judgment Parties: Michael Hunter (First Applicant) Susanne Hunter (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Smith (Applicants) C Gough (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicants) Storey & Gough Lawyers (Respondent) File Number(s): 2020/160890 Publication restriction: No 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 the refusal of Modification Application No. MOD2019/0639 to modify Development Consent 2018/2027 for alterations and additions to an existing dwelling house (the Development Consent) at 15 Addison Road, Manly (the site), to allow for the construction of a sandstone wall and lift, and the addition of external doors to the existing boatshed, by deleting Condition 8 and amending Condition 18 of the Development Consent (the proposal) by Northern Beaches Council (the Council). 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 9 February 2021. I presided over the conciliation conference. 3. 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. 4. 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. 5. There are preconditions to the exercise of power to modify the Development Consent for the proposal pursuant to s 4.55(2) of the EPA Act, s 7.17(2) of the Biodiversity Conservation Act 2016 (Biodiversity Act) because the site is mapped as an 'Area of outstanding biodiversity value', the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, State Environmental Planning Policy (Coastal Management) 2018 and the Manly Local Environmental Plan 2013 (LEP 2013). The site 1. The site is legally described as Lot C in DP 316879. The site is a battle axe lot with an access handle from Addison Road. The site has an area of 518.5m2. The site adjoins the harbour. The proposal 1. The proposal is to delete Condition 8 and amend Condition 18 of the conditions of consent of the Development Consent, to allow the construction of a sandstone wall and lift, and the addition of external doors to the existing boat shed. Planning framework 1. Section 4.55(2) of the EPA Act is in the following terms: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied 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 (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. 1. Section 7.17(2) of the Biodiversity Act is in the following terms: (2) The provisions of this Division relating to applications for development consent or State significant infrastructure approvals apply to any such application for modification as follows— (a) the provisions apply in relation to the original development as proposed to be modified, (b) a biodiversity development assessment report is required to be submitted and taken into consideration if this Division applies to the original development as proposed to be modified even if a biodiversity development assessment report was submitted in connection with the application for the original development or even if this Division did not apply to the original development (for example, because the modification results in the development exceeding the biodiversity offsets scheme threshold), (c) however a further biodiversity development assessment report is not required to be submitted if the authority or person determining the application for modification (or determining the environmental assessment requirements for the application) is satisfied that the modification will not increase the impact on biodiversity values, (d) the biodiversity development assessment report submitted with the application for modification is to take into account any measures already taken to avoid, minimise or offset the impact on biodiversity values in connection with the consent or approval before the proposed modification, 1. The site is zoned E4 Environmental Living pursuant to LEP 2013. The objectives of the zone are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To protect tree canopies and ensure that new development does not dominate the natural scenic qualities of the foreshore. • To ensure that development does not negatively impact on nearby foreshores, significant geological features and bushland, including loss of natural vegetation. • To encourage revegetation and rehabilitation of the immediate foreshore, where appropriate, and minimise the impact of hard surfaces and associated pollutants in stormwater runoff on the ecological characteristics of the locality, including water quality. • To ensure that the height and bulk of any proposed buildings or structures have regard to existing vegetation, topography and surrounding land uses. Consideration 1. I have considered the parties' submission on the jurisdictional preconditions to the exercise of power to modify the development consent and I am satisfied that the relevant preconditions have been satisfied by the proposal for the reasons given by the parties in the jurisdictional checklist attached as Attachment 1. 2. I am satisfied that the modified development will be substantially the same as the original Development Consent for the reasons given by the applicant's planning expert and summarised by the parties in the jurisdictional checklist attached as Attachment 1. 3. I am satisfied that the jurisdictional precondition that the proposal will not increase the impact on biodiversity values pursuant to s 7.17(2) of the Biodiversity Act are met by the proposal on the basis of the information provided by the applicant in the Biodiversity Assessment Report dated 8 February 2021. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the application to rely on the Biodiversity Assessment Report dated 8 February 2021. 2. The appeal is upheld. 3. Modification Application No. MOD2019/0639 to modify Development Consent 2018/2027 for alterations and additions to an existing dwelling house at 15 Addison Road, Manly, to allow for the construction of a sandstone wall and lift and the addition of external doors to the existing boatshed, by deleting Condition 8 and amending Condition 18 of the Development Consent, is approved, subject to the consolidated conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (309011, pdf) Attachment 1 (154769, pdf) ********** Amendments 24 February 2021 - Insertion of Attachment 1 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: 24 February 2021