Land and Environment Court New South Wales Medium Neutral Citation: Zaki v Hunters Hill Council [2022] NSWLEC 1228 Hearing dates: Conciliation conference on 14 April 2022 Date of orders: 03 May 2022 Decision date: 03 May 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No. 2020/1079 for the demolition of ancillary structures, alterations and additions to 'Dunham House', and construction of a new two storey building over a basement car park, with associated landscaping works and tree removal, for use as a childcare centre for 101 children, at 2 Massey Street, Gladesville, is modified, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – modify the approved development – childcare centre – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Environmental Planning and Assessment Regulation 2000 cl 121B Environmental Planning and Assessment Regulation 2021 Sch 6 Land and Environment Court Act 1979, s 34 Hunters Hill Local Environmental Plan 2012, Sch 5, cl 5.10 Cases Cited: Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535 Raland Constructions Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1572 Category: Principal judgment Parties: Maged Zaki (Applicant) Hunters Hill Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Swaab Attorneys (Applicant) Hunters Hill Council (Respondent) File Number(s): 2022/9738 Publication restriction: No Judgment 1. COMMISSIONER: This is an application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 2020/1079 granted by the Court on 28 September 2021 (Raland Constructions Pty Ltd v Hunters Hill Council [2021] NSWLEC 1535 and Raland Constructions Pty Ltd v Hunters Hill Council (No 2) [2021] NSWLEC 1572) for the demolition of ancillary structures, alterations and additions to 'Dunham House', and construction of a new two storey building over a basement car park, with associated landscaping works and tree removal, for use as a childcare centre for 101 children (the approved development), at 2 Massey Street, Gladesville (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 April 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. 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. The parties' decision involves the Court modifying the development consent, pursuant to s 4.55(8) of the EPA Act. 4. There are preconditions to the exercise of power to modify a development consent, pursuant to s 4.55(2) of the EPA Act. 5. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application because the application was lodged on 12 January 2022 and had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021). 6. Hunters Hill Council (the Council), as the relevant consent authority, agreed, under cl 121B of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the modification application. The amended modification application was lodged on the NSW planning portal on 14 April 2022. 7. The changes to the approved development sought by the amended modification application (the proposed development) are summarised as follows: "Modify the basement carpark to extend the footprint of the basement and change the internal layout to increase the parking from 22 to 24 spaces and allow for a fire hydrant room; Relocate the main pedestrian door and entry ramp from near the western boundary of the site to the eastern boundary of the site; Relocate the lift and fire stairs; Replace the lightwell with non-operable skylights; Relocate the skylight adjacent to the western boundary; Reconfigure the indoor playrooms on the lower ground floor level to delete playroom 4 and replace with a kitchen and office adjacent to the western boundary; delete playroom 5 and replace with a reception to the new entry ramp. Playrooms 1, 2 and 3 are relocated adjacent to the southern boundary to Massey Street. Playroom 4 is now in the location of where Playroom 3, the toilets and lightwell were previously." 1. Annexure B is a list of the changes to the approved development and the conditions of consent made by the amended modification application. 2. I accept the Council's submission that in satisfaction of s 4.55(2)(a) of the EPA Act, a comparison between the originally approved architectural plans and the proposed architectural plans demonstrates that there is no radical transformation of the approved development, and the essence of the approved development remains the same. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 3. I accept the Council's submission that in satisfaction of s 4.55(2)(c) of the EPA Act, the application was notified to surrounding neighbours in accordance with the requirements of the Council's Community Participation Plan and one objection was received. I accept the Council's submission that the Council has considered the objection and is satisfied that the issues raised have been appropriately addressed by the amended application because there is no change to the height of the approved development and the traffic generated by the additional car parking spaces will be negligible. 4. The site is identified as a local heritage item, House, "Dunham" (Item 480, Sch 5 to LEP 2012). The site is within the Hunters Hill Heritage Conservation Area (HCA). Pursuant to cl 5.10(4) of LEP 2012, the consent authority must, before granting consent under cl 5.10 in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or heritage conservation area. I am satisfied that the proposal does not affect the identified heritage significance of 'Dunham House' or the HCA, because the modifications to the approved development are to the new approved building, and do not significantly change the building form within the curtilage of the heritage item. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 28 April 2022 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent No. 2020/1079 for the demolition of ancillary structures, alterations and additions to 'Dunham House', and construction of a new two storey building over a basement car park, with associated landscaping works and tree removal, for use as a childcare centre for 101 children, at 2 Massey Street, Gladesville, is modified, subject to the consolidated conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court Annexure A Annexure B ********** 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: 03 May 2022