Land and Environment Court New South Wales Medium Neutral Citation: McInnes v Inner West Council [2021] NSWLEC 1352 Hearing dates: Conciliation conference on 08 June 2021 Date of orders: 16 June 2021 Decision date: 16 June 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Consent DA/2020/0072 as modified by Council on 24 March 2021 is further modified by amending conditions 1, 2 and 13 in the terms set out in Annexure A. (3) Development Consent No DA/2020/0072 as modified by the Court is set out at Annexure B. Catchwords: MODIFICATION APPLICATION – amendment to conditions of consent – 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 Leichardt Local Environmental Plan 2013 Texts Cited: Leichardt Development Control Plan 2013 Category: Principal judgment Parties: Karen McInnes (Applicant) Inner West Council (Respondent) Representation: Counsel: F Rourke (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Allens (Applicant) Inner West Council (Respondent) File Number(s): 2021/41156 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 2020/0072 (the original consent). The original consent granted approval to the alterations and additions to an existing single storey dwelling house at 4 Taylor Street, Annandale. 2. The modification application (MOD/2020/0475) seeks the following amendments: 1. Substitution of the approved plans at Condition 1 of the original consent with modified plans which: 1. amend the roof form and in doing so provide an alternative means of addressing the objectives of the design changes sought by Conditions 2(a), 2(b) and 2(c) of the original consent; 2. deletion of the BBQ referred to in Condition 2(d); and 3. extend the approved timber decking to the northern boundary adjacent the front door. 1. delete conditions 2(a), 2(b), 2(c) and 2(d) from the original consent. 1. 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. 2. 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. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 09 June 2021. 3. 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 R1 General Residential under Leichardt Local Environmental Plan 2013. Dwelling houses are a permissible use in the zone. 2. 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. 3. Pursuant to s 4.55(2)(b) of the EPA Act, no consultation or concurrence is required for the modification application. 4. I am satisfied that the modification application has been notified in accordance with Leichardt Development Control Plan 2013. As required by s 4.55(2)(d) of the EPA Act, I have considered those submissions in determining the modification application. 5. 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 appeal is upheld. 2. Consent DA/2020/0072 as modified by Council on 24 March 2021 is further modified by amending conditions 1, 2 and 13 in the terms set out in Annexure A. 3. Development Consent No DA/2020/0072 as modified by the Court is set out at Annexure B. ………………………… D M Dickson Commissioner of the Court Annexure A (151663, pdf) Annexure B (282355, 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: 16 June 2021