Land and Environment Court New South Wales Medium Neutral Citation: Marks v Willoughby City Council [2022] NSWLEC 1142 Hearing dates: Conciliation conference listed on 14 March 2022 but agreement reached before this conference Date of orders: 21 March 2022 Decision date: 21 March 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: 1) Owner's consent is granted with respect to the lodgement of the development application in regard to the nominated works in The Bulwark road reservation as particularised in the plans and documents referenced at Annexure A. 2) The appeal is upheld. 3) Modification Application No. DA-2015/501/B to modify Development Consent DA-2015/501 at 240 Edinburgh Road, Castlecrag is approved. 4) Development Consent No. DA-2015/501 is modified by the new and amended conditions as set out in Annexure A. 5) The consolidated conditions of Development Consent No. DA-2015/501 as modified by the Court is set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, cl 113 Land and Environment Court Act 1979, ss 34, 39 Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Category: Principal judgment Parties: Aidan Austin Marks (Applicant) Willoughby City Council (Respondent) Representation: J Hones (Applicant) L Taylor (Respondent) Solicitors: Hones Lawyers (Applicant) Lyndsay Taylor Lawyers (Respondent) File Number(s): 2021/358211 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ('EP&A Act') against the Respondent's refusal of a modification application made pursuant to s 4.55 of the EP&A Act. 2. The modification application (DA-2015/501/B) seeks to modify Development Consent No. 2015/501 for construction of a swimming pool, decking, landscaping, retaining walls and the carrying out of associated works at 240 Edinburgh Road, Castlecrag ('site'). 3. These proceedings were commenced in relation to two conditions imposed by the Respondent as part of the approval of the Modification Application, specifically conditions 26 and 3D. Conditions 26 and 3D operated to prevent the removal of a cocos palm and retaining wall from the adjacent public road reserve on The Bulwark (Reserve). 4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was listed for 14 March 2022 and at which I was delegated to preside over. Prior to the conciliation conference, and after the preparation of amending plans, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application. 5. 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. 6. The parties' decision involves the Court exercising the function under s 4.55(2) of the EP&A Act to grant consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. By way of a jurisdictional statement dated 8 March 2022, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. 7. In regard to jurisdiction and mindful of the parties' note, I find as follows: * Having regard to s 4.55(2)(a) of the EP&A Act, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. This is because the changes are to matters of detail and the development would be essentially and materially the same with the proposed changes. * Having regard to ss 4.55(2)(b) and (c) of the EP&A Act, I am satisfied with the advice of Council that proper notification and consultation has occurred. * Having regard to s 4.55(2)(d) of the EP&A Act, I note no objecting submissions were received. * Having regard to s 4.55(3) of the EP&A Act, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EP&A Act, noting the different test applicable here when compared to the evaluation of a development application mindful of North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 (at 481C). 1. The parties have also drawn to my attention the fact that the modification would involve certain agreed works within the Reserve, which is under the ownership of Willoughby City Council. In the jurisdictional statement, the parties infer that, at this point, owner's consent for this work has not been provided. I accept the advice of the parties that the Court has the power, pursuant to s 39(2) of the LEC Act, to exercise the function of the Respondent Council and provide owner's consent for works in the Reserve. Orders are made to effect this jurisdictional requirement. 2. 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 LEC Act. 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. 3. The Court notes that 1. the Respondent (as the relevant consent authority) has agreed, pursuant to cl 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant's amendment of modification application No. DA-2015/501/B to rely on the amended landscape plans (LPCC 20-152 pages 1 – 4, Revision J, dated 27 January 2022, prepared by Conzept Landscape Architects) filed with the Court and uploaded on the NSW Planning Portal on 8 March 2022. 2. The Applicant has filed the amended modification application with the Court on 8 March 2022. 1. The Court orders that: 1. Owner's consent is granted with respect to the lodgement of the development application in regard to the nominated works in The Bulwark road reservation as particularised in the plans and documents referenced at Annexure A. 2. The appeal is upheld. 3. Modification Application No. DA-2015/501/B to modify Development Consent DA-2015/501 at 240 Edinburgh Road, Castlecrag is approved. 4. Development Consent No. DA-2015/501 is modified by the new and amended conditions as set out in Annexure A. 5. The consolidated conditions of Development Consent No. DA-2015/501 as modified by the Court is set out in Annexure B. ………………………. P Walsh Commissioner of the Court (Annexure A) (158474, pdf) (Annexure B) (289331, pdf) ********** Amendments 21 March 2022 - Annexures changed 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: 21 March 2022