Land and Environment Court New South Wales Medium Neutral Citation: Elias v Burwood Council [2022] NSWLEC 1288 Hearing dates: Conciliation conference on 2-3 May 2022 Date of orders: 7 June 2022 Decision date: 07 June 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) The Appeal is upheld. (2) Modification Application No MOD.10.2020.84.02 (as amended), for alterations and additions to the approved plans, including alterations of stairwells in both dwellings, reconfiguration of building façade and apertures and revision of floorplan layout in both dwellings is approved and Development Consent DA 84/2020, granted by the Respondent on 26 February 2021, is modified as set out in Annexure "A" to this judgment. (3) Development Consent DA 84/2020, as modified by the Court, is subject to the consolidated conditions of development consent set out in Annexure "B" to this judgment. Catchwords: MODIFICATION APPLICATION – Attached Dual Occupancy – amended plans – conciliation conference – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 34AA Burwood Local Environmental Plan 2012, cll 2.7, 4.3, 4.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Bradley Elias (Applicant) Burwood Council (Respondent) Representation: Counsel: T Poisel (Barrister)(Applicant) A Seton (Solicitor)(Respondent) Solicitors: Mills Oakley Solicitors (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/6034 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Bradley Elias (Applicant) against the Respondent's actual refusal of the Modification Application made pursuant to s 4.55(2) of the EPA Act. 2. The application is to modify Development Consent No. 84/2020 issued by Council on 26 February 2021 for "demolition of existing structures and construction of an attached two storey dual occupancy and strata subdivision" on the land at 4 Sherars Avenue, Strathfield. The Modification Application No. MOD.10.2020.84.02 seeks to make alterations and additions to the approved development, described on the modification application form as "Modification to the approved architectural plans, elevations and section, storm water plans and landscaping plans". 3. The Modification Application now seeks consent for: 1. Alterations and additions to the approved DA plans, including: 1. alterations of stairwells in both dwellings to ensure compliance with the Building Code of Australia (BCA); 2. reconfiguration of building façade and apertures; and 3. revision of floorplan layout in both dwellings. 1. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 2 and 3 May 2022. I presided over the conciliation conference. 2. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The amended plans reflecting that agreement were loaded on the planning portal on 2 May 2022 and accepted by Council. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 4. As this is a modification application pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent as modified relates is "substantially the same" as the development for which consent was originally granted. 5. The parties agree, after both a quality and quantitative assessment of proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally created. On review of the minor amendments made to the application, I am also satisfied that the proposed development, as modified, passes the requisite test for "substantially the same". 6. The s 4.55 Modification Application was notified by the Respondent for the period from 21 July 2021 to 6 August 2021. I am satisfied that the notification requirements have been met. 7. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Burwood Local Environmental Plan 2012 (BLEP 2012), the subject site is zoned R2 Low Density Residential. Demolition is permissible pursuant to cl 2.7 of BLEP 2012. In determining the development application, I have had regard to the objectives of the zone. 2. The proposed development complies with the development standard for Height of Buildings in cl 4.3 of BLEP 2012. 3. The proposed development complies with the development standard for Floor Space Ratio in cl 4.4 of the BLEP 2012. 4. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 1. I am satisfied that decision of the parties is a decision that the Court could have made in the proper exercise of its functions. I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties' agreement. 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 assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The appeal is upheld. 2. Modification Application No MOD.10.2020.84.02 (as amended), for alterations and additions to the approved plans, including alterations of stairwells in both dwellings, reconfiguration of building façade and apertures and revision of floorplan layout in both dwellings is approved and Development Consent DA 84/2020, granted by the Respondent on 26 February 2021, is modified as set out in Annexure "A" to this judgement. 3. Development Consent DA 84/2020, as modified by the Court, is subject to the consolidated conditions of development consent set out in Annexure "B" to this judgment. S Harding AC Acting Commissioner of the Court Annexure A (78724, pdf) Annexure B (183917, 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: 07 June 2022