Land and Environment Court New South Wales Medium Neutral Citation: Vrankovic v Waverley Council [2021] NSWLEC 1261 Hearing dates: Conciliation conference on 3 May 2021 Date of orders: 19 May 2021 Decision date: 19 May 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to amend their Class 1 application to be an application pursuant to clause 8.9 of the Environmental Planning and Assessment Act 1979. (2) The appeal is upheld. (3) Modification Application DA-236/2018/A to modify Development Consent DA-236/2018 is approved subject to the conditions set out in Annexure A. Catchwords: MODIFICATION APPLICATION – amended plans – reduction in bulk and scale – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 13, 16A, 17 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 29 Waverley Local Environmental Plan 2012 Cases Cited: Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 Texts Cited: Waverley Community Participation Plan 2019 Category: Principal judgment Parties: Aljosa Vrankovic (First Applicant) Gordana Vrankovic (Second Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicants) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicants) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2020/170907 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent DA-236/2018 (the original consent). The original consent granted approval to the development of 2 Blenheim Street, Queens Park as a residential flat development. The modification application (DA-236/2018/A) seeks to alter the approved roof to allow for habitable space at the attic level and make alterations and additions to the second and third floor of the approved building. 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55 of the EPA Act. 3. On 15 April 2021 the Applicant was granted leave to amend the modification application. In summary, the amendments resulted in a reduction in the bulk of the modified building, the addition of privacy treatments, a reallocation (but not a reduction) in the units allocated to affordable housing and the incorporation of the additional floor space to the existing units (maintaining the approved number of six units). I accept the agreed position of the parties that the Court has power to grant leave to modify the modification application: Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 at [38]-[51]. 4. At the conciliation conference, an agreement, under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of the amended modification application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 May 2021. 5. 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 have formed this state of satisfaction for the following reasons: 1. The site is zoned R3 Medium Density Development pursuant to Waverley Local Environmental Plan 2012 (LEP 2012). Development for the purpose of residential flat building is an innominate permissible use with consent in the zone. 2. The modification application retains compliance with the provision of affordable housing units as required by cl 17 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Further, the modification application complies with cll 13 and 16A of SEPP ARH. 3. In determining the modification application, I have taken into consideration the matters listed at cl 29 of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development. 4. In accordance with s 4.55(2)(a) of the EPA Act, I am satisfied that the proposed modification is substantially the same development as the original development consent. 5. Pursuant to s 4.55(2)(b) of the EPA Act, no consultation or concurrence is required for the modification application. 6. I am satisfied that the modification application has been notified in accordance with the requirements of the Waverley Community Participation Plan 2019. As required by s 4.55(2)(d) of the EPA Act, I have considered those submissions in determining the modification application. 7. In determining the modification application, I have taken into consideration the reasons given by the consent authority for the grant of the original development consent. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend their Class 1 application to be an application pursuant to clause 8.9 of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Modification Application DA-236/2018/A to modify Development Consent DA-236/2018 is approved subject to the conditions set out in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (403822, 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: 19 May 2021