Land and Environment Court New South Wales Medium Neutral Citation: Harding v Inner West Council [2023] NSWLEC 1303 Hearing dates: Conciliation conference on 23 May 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No. 2015/0181 is modified by Modification Application No. 2022/0001, as amended, for modifications to the approved development including altered form and height of the additions, the provision of a lower ground car parking area, the reconfiguration of the internal layout and the modification of the size and location of windows and other internal and external modifications, at 155 Australia Street, Camperdown, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.53, 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B Inner West Local Environmental Plan 2022, cll 1.8A, 5.10 Land and Environment Court Act 1979, s 34, 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Lauren Alice Harding (First Applicant) Melissa Rulli (Second Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicants) G Christmas (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicants) Apex Planning and Environmental Law (Respondent) File Number(s): 2022/379649 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 2022/0001 to modify Development Consent No. 2015/00181 (the development consent), including altered form and height of the additions, provide a lower ground car parking area, reconfigure the internal layout, modify the size and location of windows and other internal and external modification (the proposal), at 155 Australia Street, Camperdown (the site), by Inner West Council (the Council). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 May 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Amended application 1. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continues to apply to the application. The Council, as the relevant consent authority, consented to the amendment of the application, pursuant to cl 121B(1) of the EPA Regulation. The Applicant filed the amended application with the Court on 5 May 2023. Jurisdictional pre-requisites 1. On 8 July 2015, Marrickville Council granted development consent under DA/2015/00181 for the development described to "demolish part of the premises and carry out ground and first floor alterations and additions to a dwelling house" on land identified as Lot 26 and Lot 27 in Deposited Plan 455688 and known as number 155 Australia Street, Camperdown. 2. The development consent was due to lapse on 8 July 2020, however, pursuant to s 4.53(1)(c) of the EPA Act, was extended by two years to 8 July 2022 as it commenced prior to, and had not lapsed at, 25 March 2020 (being the commencement of the prescribed period pursuant to section 4.53(8) of the EPA Act). 3. On 3 June 2022, the Applicants (having since acquired the site and inherited the development consent) were issued a construction certificate and shortly thereafter, undertook certain works in accordance with the construction certificate and the development consent. The parties agree that the development consent was activated by these works and, thus, did not lapse on 8 July 2022. 4. I accept and adopt the parties' agreement that the proposal is substantially the same and the development for which consent was granted, having considered the modifications both qualitatively and quantitatively. The changes are summarised as follows in the jurisdictional statement: "a) Ground and first floor footprints have been reduced to be generally commensurate with the Approved Development with floor plans reconfigured accordingly; b) Excavation of the sub-floor area has been reduced; c) Alternative roof form which is more consistent with the Approved Development in form (flat roof) but features a lower wall height than the Approved Development with a centralised lantern roof for natural light to the first floor level; d) Timber fencing at the rear; e) Alternative fenestration to the Bishopgate Lane elevation, which retains the original window openings (which, the parties' experts agree, results in a better outcome than the Approved Development and the Proposal); f) Alternative materials and finishes (which, the experts agree, results in a better outcome than the Approved Development and the Proposal), with: (i) Original face brick reinstated at ground floor level; (ii) Contrasting material and colour finish at first floor level; (iii) Appropriate colour selections for accents; (iv) Timber side fencing to Bishopgate Lane." 1. Inner West Local Environmental Plan 2022 (LEP 2022) commenced on 12 August 2022, and as applications to modify consent are not saved by cl 1.8A of the LEP 2022, LEP 2022 applies to the application. The site is zoned R2 Low Density Residential pursuant to the LEP 2022. The objectives of the zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide residential development that maintains the character of built and natural features in the surrounding area. 1. The site is within a heritage conservation area. Pursuant to cl 5.10(4) of LEP 2022, the consent authority, or the Court exercising the functions of the consent authority, must consider the impact of the proposal on the heritage significance of the heritage conservation area. I am satisfied by the agreed evidence of the heritage experts that the modifications to the development consent are an improvement on the original proposal in terms of its impact on the identified heritage significance of the heritage conservation area. 2. I am satisfied that the site is suitable for the proposal, having been used for residential purposes for some time, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 23 May 2023 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent No. 2015/0181 is modified by Modification Application No. 2022/0001, as amended, for modifications to the approved development including altered form and height of the additions, the provision of a lower ground car parking area, the reconfiguration of the internal layout and the modification of the size and location of windows and other internal and external modifications, at 155 Australia Street, Camperdown, subject to the consolidated conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court Annexure A ********** 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: 16 June 2023