Land and Environment Court New South Wales Medium Neutral Citation: Design Studio 407 Pty Ltd v Georges River Council [2022] NSWLEC 1351 Hearing dates: Conciliation conference 30 June 2022 Date of orders: 07 July 2022 Decision date: 07 July 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld (2) Modification Application MOD2021/0170 is approved and Development Consent No. DA2018/0230, which approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue, Lugarno is modified in the terms in Annexure A. (3) As a consequence of Order (2) above, Development Consent No. DA2018/0230 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION- conditions of consent required design changes – amended plans – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10 Environmental Planning and Assessment Regulation 2000, cl 121B Environmental Planning and Assessment Regulation 2021, sch 6 cl 3 Land and Environment Court Act 1979, ss 34AA, 34 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Category: Principal judgment Parties: Design Studio 407 Pty Limited (Applicant) Georges River Council (Respondent) Representation: Counsel: M Driscoll, Solicitor (Applicant) J Hewitt, Solicitor (Respondent) Solicitors: BCP Lawyers & Consultants (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/92245 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to the Applicant's modification application MOD2021/0170 (the modification application) for the modification of development consent DA2018/0230 granted by Georges River Council on 2 April 2019 (the consent). The consent approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue, Lugarno. 2. The consent required the Applicant to make a number of design changes through the imposition of a condition of consent. The modification application seeks to remove this condition as well as the approved timber decks in the rear yard and replace these elements with fill, grass and retaining walls. 3. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 30 June 2021. I presided over the conciliation conference. 4. Prior to the conciliation process, the modification application was amended with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made, but not finally determined, before that date: 2021 Regulation, Sch 6 cl 3. The modification application was made before, but had not been finally determined by, 1 March 2022. The EPA Regulation therefore continues to apply to the Modification Application. This decision is referrable to the amended modification application. 5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 30 June 2022. The agreement involves the Court approving the modification application subject to conditions of consent pursuant to s 4.55(1A) of the EPA Act. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The appeal was brought pursuant to s 8.9, and was made within the time required by s 8.10 of the EPA Act. 2. The modification application is made with the consent of the owner of the Site, in accordance with s 4.55(1A) of the EPA Act and cl 115(1)(h) of the EPA Regulation. 3. I am satisfied that the proposed modification is of minimal environmental impact, this being the test required by s 4.55(1A)(a) of the EPA Act, as it removes proposed decking that was approved by the consent and proposes a realignment and screening of the pool deck in a manner that mitigates any privacy impact. 4. I am also 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 and before that consent was modified, this being the test required by s 4.55(1A)(b) of the EPA Act. A comparison between the originally approved development and the development as proposed to be modified demonstrates that there is no radical transformation of the development, and the essence of the development remains the same: Arrage v Inner West Council [2019] NSWLEC 85 at [27]. 5. The notification requirements of s 4.55(1A)(c) of the EPA Act have been met. The modification application was notified to residents in the local area between 18 November and 2 December 2021. No submissions were received. 6. Pursuant to s 4.55(3) of the EPA Act, the Court must take into consideration such of the matters referred to in s 4.15(1) of the EPA Act that are relevant to the development the subject of the application. In determining the modification application, I have given the relevant matters consideration. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes: 1. Georges River Council as the relevant consent authority for the purposes of cl 121B of the Environmental Planning and Assessment Regulation 2000 agrees to the Applicant amending Modification Application no. MOD2021/0170 by the provision of amended architectural plans prepared by Design Studio 407 dated 1 June 2022. 2. That the Applicant has uploaded the amended architectural plans to the NSW Planning Portal. 3. That the Applicant filed the amended application with the Court on 29 June 2022. 1. The Court orders that: 1. The appeal is upheld 2. Modification Application MOD2021/0170 is approved and Development Consent No. DA2018/0230, which approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue, Lugarno is modified in the terms in Annexure A. 3. As a consequence of Order (2) above, Development Consent No. DA2018/0230 as modified by the Court is Annexure B. ………………………… D M Dickson Commissioner of the Court Annexure A (208149, pdf) Annexure B (354442, 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 July 2022