Rose v Mosman Council [2022] NSWLEC 1347

Land and Environment Court New South Wales

Medium Neutral Citation: Rose v Mosman Council [2022] NSWLEC 1347 Hearing dates: Conciliation conference on 9 June 2022 Date of orders: 5 July 2022 Decision date: 05 July 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) The Appeal is upheld. (2) Modification Application No 8.2020.18.3 (as amended) is approved and the Development Consent 8.2020.18.2, is modified as set out in Annexure "A" to this judgement. (3) The Development Consent 8.2020.18.3, as approved by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure "B" to this judgment. Catchwords: MODIFICATION APPLICATION – dwelling – 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 Category: Principal judgment Parties: Laekin Rose (Applicant) Mosman Council (Respondent) Representation: Counsel: Franco Corsaro SC (Applicant) Roslyn McCulloch (Solicitor) (Respondent)

Solicitors: Brown Ward King Solicitors (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2022/51782 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 Laekin Rose (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 further modify the Development Consent 8.2020.18.1 issued by Council on 19 August 2020. This modification application, numbered 8.2020.18.3, seeks approval for proposed modifications to an approved dwelling and associated buildings including various ancillary works. 3. The Modification Application now seeks consent for the following prospective works: * Change approved metal roof to the carport to select tile to match the dwelling; * Change external metal cladding to the dwelling to Rustikotta (terracotta tile) finish; * Change external metal cladding to the cabana to Rustikotta (terracotta tile) finish; * Remove approved window in the southern elevation of the cabana and replace with proposed external Rustikotta (terracotta tile) finish; * Relocate stormwater tanks to within the basement level; * Revised gate location providing access from the cabana to the pool deck; * Revised balustrade position adjacent to the access stairs from the cabana to the basement level; * Demolish the concrete stairs constructed from the basement level to the south-eastern yard; * Remove /permanently fill the windows openings in the eastern elevation of the basement level; * Remove/permanently fill the opening in the cabana floor to the basement level below; * Provide new circular planter to the pool deck area; * The area of deep soil presently occupied by "pool/service equipment cupboard", is to be retained at ground level (existing) and landscaped. Consequently, the "pool/service equipment cupboard" and the "large diameter pot" is to be relocated further south such that the "pool/service equipment cupboard" sits above the sub-floor space below; * The tree shown on the landscape plan at the lower level in the south-east corner of the site shall be an angophora costata; and * The planting in the south-east corner of the site shall consist of species capable of reaching a mature height of 4m above natural ground level. 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 9 June 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 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 qualitative and quantitative assessment of the 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 granted. 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 and subsequent submissions considered by the parties. 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 of 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). I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties' agreement. 9. 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.