Gardiner v Inner West Council [2021] NSWLEC 1724

Land and Environment Court New South Wales

Medium Neutral Citation: Gardiner v Inner West Council [2021] NSWLEC 1724 Hearing dates: Conciliation conference on 29 October 2021 Date of orders: 25 November 2021 Decision date: 25 November 2021 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders: 1) The appeal is upheld. 2) Development Consent DA/2020/0624 as modified by amending deferred commencement conditions A and B; conditions 1, 13A, 13B, 19 and 41 in the terms set out in Annexure "A". 3) The Court notes that Development Consent No. DA/2020/0624 as modified by the Court is set out at Annexure "B". Catchwords: MODIFICATION APPLICATION – amend conditions of development consent for dwelling houses and subdivision – conciliation – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 34A Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Category: Principal judgment Parties: Trevor Gardiner (Applicant) Inner West Council (Respondent) Representation: Counsel: M Driscoll (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)

Solicitors: Bcp Lawyers+Consultants (Applicant) Inner West Council (Respondent) File Number(s): 21/206925 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent (Council) of modification application MOD/2021/0028 (modification application) pursuant to s 4.55(2) of the EP&A Act to modify Development Consent DA/2020/0624 (Consent). 2. The Consent was for subdivision, new dwelling and associated works on land being Lot 22 Section 3 in Deposited Plan 2626 known as 15 Hathern Street, Leichhardt (site). 3. The modification application seeks to delete 'Deferred Commencement' Consent conditions pertaining to site drainage and stormwater control and that required the deletion of the garage and associated vehicular access at the front of the approved dwelling. 4. On 29 October 2021 I conducted a conciliation pursuant to ss 34 and 34A of the Land and Environment Court Act 1979 (Court Act). 5. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to allow the appeal and to modify the development consent subject to conditions. 6. On 29 September 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. The proposed consolidated conditions of development consent were also provided on 29 October 2021. 7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 8. The parties' agreement involves the Court exercising the function under s 4.55 of the EP&A Act to grant the application to modify the development consent. 9. Section 4.55(2)(a) of the EP&A Act requires that I must be satisfied that the modified development "is substantially the same development" as the originally approved development. The most common approach to determining whether what is proposed is substantially the same as the original development is to identify and compare both the quantitative and qualitative changes. The modified development must be essentially or materially the same, and the nature of the development must remain the same (see generally Arrage v Inner West Council [2019] NSWLEC 85). 10. The proposed amendments are very minor and do not change the essence of the development approved in any material way. I am satisfied that the modified development is substantially the same development as the originally approved development in accordance with s 4.55(2)(a) of the EP&A Act. 11. There is no non-compliance of any development standard in the applicable local environmental plan, nor any matter going to jurisdiction which was not otherwise addressed in the grant of the Consent. 12. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. 13. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 14. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 s 4.15 of the EP&A Act. 15. The Court orders: 1. The appeal is upheld. 2. Development Consent DA/2020/0624 as modified by amending deferred commencement conditions A and B; conditions 1, 13A, 13B, 19 and 41 in the terms set out in Annexure "A". 3. The Court notes that Development Consent No. DA/2020/0624 as modified by the Court is set out at Annexure "B". ……………………………..