Land and Environment Court New South Wales Medium Neutral Citation: Frangipani 88 Development Pty Ltd v Blacktown City Council [2021] NSWLEC 1240 Hearing dates: Conciliation conference on 1 April 2021 Date of orders: 12 May 2021 Decision date: 12 May 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the following amended plans: (a) Elevations – North & South (Drawing No. 16F-015 Revision J) prepared by ALAND dated 20 April 2021. (b) Elevations – East & West (Drawing No. 16F-017 Revision J) prepared by ALAND dated 20 April 2021. (c) Materials and Finishes (Drawing No. 16F-019 Revision G) prepared by ALAND dated 20 April 2021. (2) The appeal is upheld. (3) Modification Application No. MOD 20-00252 for the modification of the external facades of the residential flat buildings the subject of development consent JRPP-16-03332 granted by the Land and Environment Court in case number 2017/00069602 at Lot 6, DP 1223464, known as 125 Jerralong Drive, Schofields is approved in accordance with the conditions contained in Annexure 'A'. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.56, 8.9 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Frangipani 88 Development Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicant) Bartier Perry (Respondent) File Number(s): 2020/346777 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a modification application that seeks to modify Condition 2.1.1 of a development consent for the construction of residential flat buildings, to make changes to the building elevations, colours and materials of the residential flat buildings approved. The development consent was granted on 18 August 2017 by the Court, and relates to land in Lot 16F in the plan of subdivision of Lot 16 DP 31797 in Jerralong Drive, Schofields. The appeal is lodged 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 4.56(1) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference. 2. 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 1 April 2021. 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. The signed agreement was filed on 30 April 2021. 4. 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 modification is to the external presentation and materials used for the building, and does not alter any essential element of the approved development. I also note that the modification application was not required to be notified as all adjoining properties are owned by the same owner/developer. 5. 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)). 6. 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 ss 4.56(1A) and 4.15(1) of the EPA Act. 7. The Court orders that: 1. The Applicant is granted leave to rely on the following amended plans: 1. Elevations – North & South (Drawing No. 16F-015 Revision J) prepared by ALAND dated 20 April 2021. 2. Elevations – East & West (Drawing No. 16F-017 Revision J) prepared by ALAND dated 20 April 2021. 3. Materials and Finishes (Drawing No. 16F-019 Revision G) prepared by ALAND dated 20 April 2021. 1. The appeal is upheld. 2. Modification Application No. MOD 20-00252 for the modification of the external facades of the residential flat buildings the subject of development consent JRPP-16-03332 granted by the Land and Environment Court in case number 2017/00069602 at Lot 6, DP 1223464, known as 125 Jerralong Drive, Schofields is approved in accordance with the conditions contained in Annexure 'A'. ……………………… J Gray Commissioner of the Court Annexure A (595683, pdf) ********** Amendments 28 May 2021 - By way of notice of motion and pursuant to UCPR r 36.17, the Court amends Condition 2.1.1 of Annexure A and renumbers the second condition 2.1.1 to read as "2.1.2". 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: 28 May 2021