Land and Environment Court New South Wales Medium Neutral Citation: Ajaka v Waverley Council [2022] NSWLEC 1191 Hearing dates: Conciliation conference held on 21 March 2022 Date of orders: 8 April 2022 Decision date: 08 April 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) Leave is granted to the applicant to amend the modification application the subject of the appeal and rely on the plans and documents listed under condition 1 of Annexure 'A'. (2) The appeal is upheld. (3) Consent is granted to modification application number DA-238/2020/B in accordance with the conditions in Annexure A. (4) As a consequence of the modification, development consent DA-238/2020 is subject to the consolidated, modified conditions of consent 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 Land and Environment Court Act 1979, s 34 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Category: Principal judgment Parties: Joseph Ajaka (Applicant) Waverley Council (Respondent) Representation: J Lazarus SC (Applicant) L Mulligan (Respondent) Solicitors: Hartley Solicitors (Applicant) Lyndsay Taylor Lawyers (Respondent) File Number(s): 2021/312095 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 (EPA Act) against the deemed refusal by Waverley Council (Council) of a modification application made pursuant to s 4.55 of the EPA Act. 2. The modification application (DA-238/2020/B) seeks to modify Development Consent No. DA-238/2020 for demolition of a dwelling and construction of a two-storey dwelling with integrated garage, retaining an existing swimming pool, at 13 Calga Avenue, Bronte (site). Agreement between the parties 1. 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 held on 21 March 2022, and at which I presided. After the conciliation conference, and 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. 2. 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. 3. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA 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 received 30 March 2022, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. Jurisdiction 1. In regard to jurisdiction and mindful of the parties' note, I find as follows: 1. Having regard to s 4.55(2)(a) of the EPA Act, I agree with the expressed view of the parties in the jurisdictional statement and 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. I accept the description in the jurisdictional statement that the modification application generally sought to modify the Consent as follows: 1. Relocate the approved dwelling 900mm westward. 2. Increase the width of the living and dining room by 500mm pushing most of the dwelling westward. 3. Move west kitchen wall (facing alfresco) 500mm west. 4. Expand basement. 5. Increase the height of the west boundary wall (behind the pool) to 500mm above the height of the neighbour's fence. 6. Increase the height of the sandstone feature walls along the rear of the southern and norther boundaries. 1. The Modification Application was then amended during the course of the conciliation. The amendments included the following: 1. Reduction in the height of boundary walls surrounding the rear pool area at the western, southern and northern boundaries to reduce view impacts. 2. Reduction of the pool level to reduce privacy impacts. 3. Increase to the western (rear) setback of a bedroom on the upper floor level. 4. Relocation of an interior wall within the basement level. 1. In their context, I see these changes as alterations without radical transformation. As modified, the development would essentially, and materially, have the same essence as that originally approved (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]). 2. Having regard to subss 4.55(2)(b) and (c) of the EPA Act, I accept the advice of the parties that the required notification and consultation has occurred. 3. The test at s 4.55(2)(d) of the EPA Act is that consideration be given to submissions. I have considered the objecting submissions which were received, including the oral submissions made on site and submissions forwarded to the Court subsequent to the site inspection. 4. Having regard to s 4.55(3) of the EPA Act and with the assistance of the jurisdictional statement of the parties, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EPA 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; [1998] NSWSC 163 (at 481C). That is that s 4.55 of the EPA Act operates according to its own terms, with for example, requirements of planning instruments, per se, matters for consideration under s 4.55(3) of the EPA Act, rather than providing for statutory bars (eg in regard to the breach of development standards). 5. Section 4.55(3) of the EPA Act also requires me to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. A copy of the development assessment report for DA 238/2020 was provided in Council's bundle of documents filed on 14 March 2022. This report provides reasons for the grant of the original consent, and I have given consideration to these reasons. Related proceedings 1. There are current Court proceedings between the parties in another matter (Proceedings 2022/58364) which have some relationship with the matter before me. These related proceedings are concerned with the same site but have not been relevant to the decision I have made here. Nevertheless, in their signed agreement, the parties have requested the Court note the following agreement between the parties in relation to Proceeding 2022/58364 (referred to below as the Related Proceedings): "A. Within seven days after of these orders, the Applicant in these proceedings agrees to give the Respondent a written notice of the surrender of complying development certificate CDC E210162/CDC-01, pursuant to clause 68 of the Environmental Planning and Assessment Regulation 2021. B. The Applicant is to notify the Respondent at the time that it gives the notice of surrender referred to in Note 4A above, pursuant to clause 68(4) of the Environmental Planning and Assessment Regulation 2021. C. Within 2 business days of receiving the notice referred to at 4B above, the Respondent is to discontinue the Related Proceedings. D. The parties agree that the terms of the Notice of Discontinuance in the Related Proceedings will include an order that the Applicant in these proceedings pay the costs of the Respondent in these proceedings, in the sum of $7,000." 1. This arrangement is duly noted. Conclusion 1. 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. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. In accordance with these legal provisions, the Court's functions do not include the consideration of the overall merits of the proposal in this instance. Orders 1. The Court orders that: 1. Leave is granted to the applicant to amend the modification application the subject of the appeal and rely on the plans and documents listed under condition 1 of Annexure 'A'. 2. The appeal is upheld. 3. Consent is granted to modification application number DA-238/2020/B in accordance with the conditions in Annexure A. 4. As a consequence of the modification, development consent DA-238/2020 is subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………. P Walsh Commissioner of the Court (Annexure A) (176914, pdf) (Annexure B) (311886, 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: 08 April 2022