Heller v Northern Beaches Council [2022] NSWLEC 1693

Land and Environment Court New South Wales

Medium Neutral Citation: Heller v Northern Beaches Council [2022] NSWLEC 1693 Hearing dates: Conciliation conference 9 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA2021/1790 for alterations and additions to a dwelling house, including a swimming pool and garage at Lot 41 in Deposited Plan 13760, known as 214 Hudson Parade, Clareville, is modified in the terms in Annexure A. (3) Development Consent No. DA2021/1790 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, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 34, 34AA Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Category: Principal judgment Parties: Patrick Heller (Applicant) Northern Beaches Council (Respondent) Representation: M Jaku (Solicitor) (Applicant) A Gough (Solicitor) (Respondent)

Solicitors: Jaku Legal (Applicant) Storey Gough (Respondent) File Number(s): 2022/225631 Publication restriction: Nil

Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal by the applicant pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal, by Northern Beaches Council (Council), of a modification application made pursuant to s 4.55 of the EPA Act. 2. The modification application (Mod2022/0314) seeks to modify development consent DA2021/1790 which was for alterations and additions to a dwelling house, including a swimming pool and garage, at 214 Hudson Parade Clareville, legally described as Lot 41 in Deposited Plan 13760 (site). A condition in the development consent (Condition 10) required the maximum height of the roof to "Bedroom 4" be lowered by 600mm from what had been proposed in the applicant's plans. The modification application, as originally lodged, sought approval to amend Condition 10 of the development consent, in order to re-instate the previously proposed roof form above Bedroom 4. 3. The Court arranged a mandatory conciliation conference between the parties under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was listed for 9 and 12 December 2022 and at which I was delegated to preside. Prior to the conciliation conference, and after the preparation of amending plans, 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. 4. In respect of the amendments, I note the following advice from the parties: 1. Northern Beaches Council as the relevant consent authority has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Modification Application No. Mod2022/0314 in accordance with the following: 1. The following amended architectural plans prepared by Utz Sanby Architects: Drawing No. Drawing Title Date DA-00, Rev C DA Site Plan / Roof Plan 17 October 2022 DA-02, Rev C DA Section 17 October 2022 DA-03, Rev C DA Elevations 17 October 2022