Land and Environment Court New South Wales Medium Neutral Citation: MYGA Investments Pty Limited v Waverley Council (No 3) [2022] NSWLEC 1366 Hearing dates: Conciliation conference listing 7 July 2022 Date of orders: 12 July 2022 Decision date: 12 July 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application No. DA-7/2021/A to modify development consent No. DA-7/2021 seeking modifications to allow for the relocation of the air conditioning units, internal reconfigurations, external reconfigurations, and minor changes to landscaping at 2 Princess Street, Rose Bay, is approved, subject to the conditions of consent in Annexure A. (3) Development Consent No. DA-7/2021 as modified by the Court is 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 Land and Environment Court Act 1979, s 34 Cases Cited: MYGA Investments Pty Limited v Waverley Council (No 2) [2022] NSWLEC 1066 Category: Principal judgment Parties: MYGA Investments Pty Limited (Applicant) Waverley Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/115588 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to a modification application which seeks to amend the development consent for DA-7/2021 issued by the Court in MYGA Investments Pty Limited v Waverley Council (No 2) [2022] NSWLEC 1066 (Court approval). The Court approval was for the demolition of an existing single story building and erection of three townhouses, comprising a multi dwelling housing development, and associated strata subdivision at 2 Princess Street Rose Bay, legally described as Lot 7 in Section B of DP 4185 (site). 2. The modification application (MA) was lodged directly with the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. I accept the summary outline of the amendments proposed in the MA as per the agreed jurisdictional statement dated 4 July 2022 (jurisdictional statement), as follows: "(a) Basement Level: (i) Fire stair added to driveway; (ii) Fire exist added to rear of property; (iii) Relocation of air conditioning units from basement to western side Courtyard. (b) Ground Floor Level: (i) Fire stair added to driveway; (ii) Fire exist added to rear of property; (iii) Relocation of air conditioning units from basement to western side courtyard. (c) First Floor Level: (i) Create home office to line up with prevailing east side setback; (ii) Increase size of Master Bedroom by moving ensuite 389mm east (Unit C); (iii) Move master ensuite casement window 389mm east (Unit C). (d) Second Floor Level: (i) Raise level of second floor by 200mm; (ii) Move master ensuite windows north by 205mm (Unit A); (iii) Demolish portion of roof above stairs (Unit C); (iv) Build new portion of roof over master ensuite (Unit C) to match approved roof. (e) Roof: (i) Increase roof height by 400mm." 1. The modifications would also respond to advice received by the applicant as to necessary amendments needed to satisfy the requirements of Ausgrid, noting the site adjoins an Ausgrid substation. The applicant's fire safety engineer has subsequently indicated the need for further necessary amendments which primarily include provision of a fire stair to the basement car park. The amendments are necessary in order to ensure compliance with relevant provisions of the Building Code of Australia. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), for 7 July 2022, which the Chief Judge delegated to me for attention. 3. Accordingly, 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 in accordance with agreed conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 5. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed statement of jurisdictional requirements on 4 July 2022. Regarding jurisdiction, and noting the advice in the parties' jurisdictional statement, I am satisfied in regard to the matters listed below. 6. Having regard to s 4.55(2) of the EPA Act: 1. Mindful of subs 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. On this I have noted the detailed particulars in the Modified Statement of Environmental Effects (Addendum) prepared by Tony Moody Planning and Development (MSEE) which was behind Tab 8 in the bundle of documents filed with the Court on 5 July 2022. I agree with this analysis that the modified development would be quantitatively and qualitatively the same as the development for which the consent was originally granted. 2. Mindful of subs 4.55(2)(b), I accept the advice of the parties that no concurrence, or consultation in relation to concurrence was required. 3. Mindful of subss 4.55(2)(c) and 4.55(2)(d), Council advises that the MA was notified in accordance with requirements and Council did not receive any objector submissions. 1. Having regard to s 4.55(3) of the EPA Act, I have taken into consideration: 1. The matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application (assisting me here were the matters outlined in the parties' jurisdictional statement and the evaluative particulars in the MSEE), and 2. The reasons given by the consent authority for the grant of the consent that is sought to be modified (as per the judgement associated with the Court approval). Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Modification application No. DA-7/2021/A to modify development consent No. DA-7/2021 seeking modifications to allow for the relocation of the air conditioning units, internal reconfigurations, external reconfigurations, and minor changes to landscaping at 2 Princess Street, Rose Bay, is approved, subject to the conditions of consent in Annexure A. 3. Development Consent No. DA-7/2021 as modified by the Court is Annexure B. .………………………… P Walsh Commissioner of the Court (Annexure A) (184163, pdf) (Annexure B) (390756, 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: 12 July 2022