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. Jurisdictional preconditions 1. Section 4.56 of the EPA Act provides that: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if— (a) it is satisfied 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 before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with— (i) the regulations, if the regulations so require, and (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. Substantially the same: s 4.56(1)(a) 1. The Council submits for the reasons set out at Section 8 of the applicant's Statement of Environmental Effects (SEE), the Court can be satisfied that on a quantitative and qualitative basis, 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 before that consent as originally granted was modified (if at all) is substantially the same. Put simply, the proposed development after modification will remain and continue to be a four attached two-storey residential dwelling with attic levels above a basement car parking level, with the land subdivided into four Torrens Titled lots. Notification: s 4.56(1)(b) 1. The modification application was notified from 1 June 2023 – 15 June 2023 to those who had previously made submission about the original DA. No submissions were received. Consideration of s 4.15: s 4.56(2) 1. The Council submits that the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the modification application have been addressed in the applicant's SEE, and it is satisfied that there is no merit basis to refuse the modification. Conclusion 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. 2. The Court notes: 1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the applicant has amended modification application no. MOD.2022/0310 with the agreement of the Council. 2. The applicant has filed the amended documents with the Court on 31 July 2023. 3. The Building Management Statement is in Annexure A. 1. 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. ………………… S Dixon Senior Commissioner of the Court Annexure A (291898, pdf) Annexure B (188226, pdf) Annexure C (324260, 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: 09 August 2023