Land and Environment Court New South Wales Medium Neutral Citation: Le Poidevin v Inner West Council [2023] NSWLEC 1420 Hearing dates: Conciliation Conference 4 July 2023 Date of orders: 03 August 2023 Decision date: 03 August 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application No MOD/2022/0233 to modify Development Consent No 2022/0070, is approved. (3) Development consent No 2020/0070 is modified in the terms set out in Annexure A. (4) Development consent No 2022/0070, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B. Catchwords: APPEAL – modification application – alterations and additions to existing dwelling house – modification of roof pitch – conciliation conference – agreement reached – orders made 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 Category: Principal judgment Parties: Aaron Jon Le Poidevin (First Applicant) Sophie Louise Lilian Le Poidevin (Second Applicant) Inner West Council (Respondent) Representation: S Griffiths (Solicitor) (Applicant) M Pearce (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) Inner West Council (Respondent) File Number(s): 2023/39109 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for the refusal by Inner West Council (the Council) to modify development consent No 2022/0070 for lower ground and ground floor alterations and additions to the existing dwelling and associated works (approved development) on land identified as Lot 1 in Deposited Plan 1272475 and known as 50 Church Street, Birchgrove (the Site). The modification application sought to modify the approved development to vary the pitch of the rear roof from 10 degrees to 30 degrees to create the Applicants' desired raked ceiling internally. 2. In exercising the functions of the consent authority, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. 3. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on-site on 4 July 2023. I presided over the conciliation conference. 4. 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 and which addressed the Council's contentions. The parties accepted a 20 degree rear roof pitch as agreed by the town planners in a Joint Expert Report filed on 3 July 2023. Council accordingly approved the amendment to the Applicants' plans and conditions of consent pursuant to section 113(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 Appeal and amend the approved development consent to reflect a 20 degree pitch of the rear roof of the dwelling house. 5. Under s 34(3) of the LEC Act, I must dispose of the Class 1 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. 6. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification to Development Consent No 2022/0070. 7. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Statement filed on 4 July 2023. 8. Taking into account the parties' advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below. Section 4.55 – Environmental Planning and Assessment Act 1979 1. The Modification Application and the Amended Modification Application were made pursuant to section 4.55(2) of the EPA Act. In this regard, the parties agreed that: * The development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted (and having not previously been modified); * The Modification Application was appropriately notified; and * Submissions received in response to the notification of the Modification Application were considered. 1. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against: * Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; and * The reasons given by the consent authority for the grant of the Consent. State and Local Environmental Planning Instruments 1. Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant EPIs and planning controls. I refer to the analysis undertaken in the Statement and accept the agreed position of the parties. Conclusion 1. Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders as the decision is one that the Court could have made in the proper exercise of its functions. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Notations: 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has agreed to the Applicants amending the Class 1 Application, pursuant to section 113(1) of the Environmental Planning and Assessment Regulation 2021, to rely on the following amended materials. Document Description Prepared By Date Architectural plans reference: (1) DA01 – Site Analysis Plan, Issue C (2) DA11 – Concept Stormwater Drainage Plan, Issue C (3) DA12 – Elevations – Proposed, Issue C Studio Panetta 3 July 2023 (4) DA13 – Elevations – Proposed, Issue C (5) DA14 – Sections – Proposed, Issue C (6) DA15 – Sections – Proposed, Issue C (7) DA18 – Materials and Finishes, Issue C 1. The Court orders that: 1. The appeal is upheld. 2. Modification No MOD/2022/0233 to modify Development Consent No 2022/0070, is approved. 3. Development consent No 2020/0070 is modified in the terms set out in Annexure A. 4. Development consent No 2022/0070, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B. L Byrne Acting Commissioner of the Court 39109.23 Annexure A 39109.23 Annexure B ********** 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: 03 August 2023