Prilis v Inner West Council [2023] NSWLEC 1428

Land and Environment Court New South Wales

Medium Neutral Citation: Prilis v Inner West Council [2023] NSWLEC 1428 Hearing dates: Conciliation conference on 30 June 2023 Date of orders: 09 August 2023 Decision date: 09 August 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent no. DA 2018/64 is modified in the terms set out in Annexure B. (3) Development consent no. DA 2018/64 as modified by the Court is set out in Annexure C. Catchwords: APPEAL – modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56 Land and Environment Court Act 1979, s 34 Cases Cited: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 Category: Principal judgment Parties: Nicholas Prilis (Applicant) Inner West Council (Respondent) Representation: Counsel: P Prilis (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent)

Solicitors: Prilis Solicitors (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/123962 Publication restriction: Nil

Judgment 1. These proceedings are an appeal against Inner West Council's refusal of modification application no. MOD/2022/0310 (modification application). 2. The modification application seeks to modify development consent no. DA 2018/64 (Consent) granted by the Court on 20 December 2018, and is made pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The modification application seeks approval to change the form of subdivision applying to the basement level of 51-53 Albert Street, Petersham (site), and manage the basement through a Building Management Statement registered on title pursuant to Pt 23 Div 3B of the Conveyancing Act 1919 and associated easements. As the modification application proposes a change to the subdivision of the basement, and 'development' includes the 'subdivision of land' (s 1.4 of the EPA Act), there is a change to the development the subject of the Consent as required: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 June 2023. I presided over the conciliation conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the 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 4.56 of the EPA Act to modify a consent granted by the Court subject to conditions. 7. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties' joint jurisdictional submission accompanying the s34 agreement and I am satisfied having regard to the parties' submission and I note the following matters.