Land and Environment Court New South Wales Medium Neutral Citation: Gaggo v Fairfield City Council [2023] NSWLEC 1689 Hearing dates: Conciliation conference 6 and 7 November 2023 Date of orders: 16 November 2023 Decision date: 16 November 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is upheld. (2) Modification application MA 309.4/2018 is approved and the Development Consent granted to DA 309.1/2018 by the Respondent on 10 July 2018, modified by the Respondent on 9 August 2019 (DA 309.2/2018), is further modified as set out in Annexure A. (3) The Development Consent to DA 309.1/2018, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919, s 88A Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, s 38 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979, ss 34, 34AA Texts Cited: Fairfield Citywide Development Control Plan 2013 Category: Principal judgment Parties: Hussam Gaggo (Applicant) Fairfield City Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) S Shneider (Solicitor) (Respondent) Solicitors: Bartier Perry Pty Limited (Applicant) Houston Dearn O'Connor Lawyers (Respondent) File Number(s): 2023/180316 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a property known as 279 Edensor Road, Edensor Park, legally described as Lot 1012 in DP 1169160 (site). 2. On 10 July 2018, Development Application No DA 309.1/2018 for the construction of a two-storey dwelling with attached garage and construction of a detached single storey dwelling was determined by the grant of consent by Fairfield City Council (Council). 3. On 16 February 2023, the Applicant lodged a Modification Application under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (with reference number MA 309.4/2018). An intention of MA 309.4/2018 was to seek a pathway for the regularisation of certain unauthorised work undertaken on the site. The unauthorised works relate to roof design, driveway levels, retaining walls and fill levels and first floor balconies. Of relevance here is that there is an in-part shared driveway between the site and an adjoining battleaxe allotment (277 Edensor Road, legally described as Lot 1013 DP 1169160). According to the parties, the battleaxe handle, which falls within the site and runs along its eastern boundary, has status as a right of carriageway and easement for services. The owner of 277 Edensor Road uses the driveway for access. Further particulars in this aspect are considered below. 4. The appeal proceedings commenced on 6 June 2023, when the Applicant commenced Class 1 Proceedings under s 8.9 of the EPA Act against the Respondent's deemed refusal of MA 309.4/2018. 5. 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), at which I was delegated to preside. The conciliation commenced with a site inspection on 6 November 2023, where lay submissions were heard from two objectors. 6. After further discussions between the parties, and certain amending plans were prepared (and filed on 6 November 2023), it was indicated that an agreement had been reached. Subsequently the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision was based on amending plans and certain agreed conditions. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the modification application. 7. In relation to the amendments, the Court notes that Fairfield City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application MA 309.4/2018, in accordance with the following plans and documents: 1. Architectural Plans, prepared by Fedele Design Pty Ltd, Job No 22300, revision B, dated 01/11/2023: Sheet Title Revision Date DA 01 Locality Plan & General Notes B 01/11/2023 DA 02 Site Plan B 01/11/2023 DA 03 Ground Floor Plan B 01/11/2023 DA 04 First Floor Plan B 01/11/2023 DA 05 Elevations – Sheet 1 B 01/11/2023 DA 06 Elevations – Sheet 2 B 01/11/2023 DA 07 Sections B 01/11/2023 DA 08 Roof Plan & Details B 01/11/2023 DA 09 Rainwater Tank details B 01/11/2023 1. Ground Floor Stormwater Drainage Plan prepared by LMW Design Group Pty Ltd, Job No 2179.23, Drawing No D1, Revision A, dated 6 November 2023. 2. Driveway Detail and Level Survey prepared by Frankham Engineering Surveys dated 6 November 2023. 3. Detail and Level Survey prepared by Frankham Engineering Surveys dated 1 August 2023. 1. 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. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. By way of an agreed jurisdictional statement (AJS) dated 6 November 2023, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. The AJS was supplemented by further discussions with the parties on this topic on 7 November 2023. 2. In regard to jurisdiction and mindful of the AJS and the parties oral submissions, I find as follows. 3. Having regard to s 4.55(2)(a) of the EPA Act, I am 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. The particulars of the modification can be summarised as follows: 1. The modification application seeks the grant of consent for the prospective use of the following unauthorised building and civil works: variations to the roof and eave design, driveway levels, retaining walls height, first floor balconies and secondary dwelling courtyard finish floor levels. 2. The modification application seeks the grant of consent for the following works: 1. Changes to driveway levels – in particular, as described by the parties, to make good certain intentions of the approved right of carriageway. The particulars are indicated in drawing: "Driveway Detail and Level Survey" prepared by Frankham Engineering Surveys dated 6 November 2023, which is referenced in agreed consent conditions. 2. Inclusion of additional stormwater management infrastructure. The particulars are indicated in drawing: "Stormwater" prepared by LMW Design Group Pty Ltd, Plan No 2179.23, dated 6 November 2023, which is referenced in agreed consent conditions. 3. The provision of safety bollards either side of the gas meters. 1. Other agreed steps associated with the agreement between the parties relate to the modification of certain particulars relating to the existing right of carriageway and easement for services along the eastern boundary of the site. These include: 1. A change to the legal instrument created under s 88A of the Conveyancing Act 1919, in relation to the existing right of carriageway and easement for services to allow for the encroachment of the roof eaves, downpipes, gas meters and bollards and the changes to the physical configuration of the driveway. 2. A modification to the development consent for subdivision, which relates to the site (Development Consent 377.1/2011), to make reference to the encroachments listed in 10(3)(a) above. This change would be undertaken under s 4.17(1)(b) and s 4.17(5) of the EPA Act. 1. The parties advise that they believe the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I accept this advice. In a qualitative sense, the consent as modified would remain of the same description as the development for which the consent was originally granted ("… a Two Storey Dwelling with Attached Garage (and)… a Detached Single Storey Secondary Dwelling"). There is no essential element of the development the subject of the development consent that is being altered by the amended modification application. Quantitatively, the amended modification application would alter the elements outlined above (see [10]) but according to the parties the proposal would remain compliant with relevant provisions of Fairfield Local Environmental Plan 2013 (FLEP) (AJS par 30), and relevant provisions of Fairfield Citywide Development Control Plan 2013 (FDCP) have been satisfactorily addressed (AJS pars 31-37). It seems to me that the modification application maintains an overall density and form that is substantially the same as the approved development; and the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 2. Having regard to s 4.55(2)(b) of the EPA Act, I am satisfied with the advice of Council that there were no requirements for concurrence from a Minister, public authority or approval body in relation to the proposal. 3. Having regard to subss 4.55(2)(c) and (d) of the EPA Act, I am satisfied with the advice of Council that the Modification Application was notified in accordance with requirements and that consideration has been given to the objecting submissions (noting that "consideration" is the extent of the jurisdictional test). 4. Having regard to s 4.55(3) of the EPA Act, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EPA Act, noting the different test applicable here when compared to the evaluation of a development application. The AJS from the parties analyses, relevantly, the applicability of FLEP and FDCP. I have given appropriate consideration to these instruments and nothing of jurisdictional significance arises in regard to them. I have also given consideration to likely impacts, site suitability, submissions and the public interest and again nothing would persuade me against the agreement the parties have come to, in a jurisdictional sense. Further, in regard to s 4.55(3) of the EPA Act, the parties have drawn my attention to the conditions of consent in relation to DA 309.1/2018, which include some commentary in regard to reasons nominated for the grant of consent. 5. In relation to the agreed changes to the existing instrument under s 88A of the Conveyancing Act 1919 (referenced at [10(3)(a)]), I note and accept the advice of the parties that: 1. The right of carriage way and easement for services running along the eastern boundary of the site are established as an easement in gross in accordance with s 88A of the Conveyancing Act 1919 (AJS par 40). 2. Fairfield City Council is a prescribed authority for the purposes of s 88A(1A) of the Conveyancing Act 1919 (AJS par 42). 3. As a prescribed authority Fairfield City Council and not the owner of Lot 1013 (277 Edensor Road) has the ability to modify, amend or extinguish the easement in gross (AJS par 43). 4. The registered proprietor of Lot 1012 and Council may without recourse to the owner of Lot 1013 (277 Edensor Road) agree to modify or alter the right of carriageway and easement for services applying to Lot 1012 (AJS par 48). Conclusion 1. Accordingly, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to these agreements between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. The Court orders: 1. The appeal is upheld. 2. Modification application MA 309.4/2018 is approved and the Development Consent granted to DA 309.1/2018 by the Respondent on 10 July 2018, modified by the Respondent on 9 August 2019 (DA 309.2/2018), is further modified as set out in Annexure A. 3. The Development Consent to DA 309.1/2018, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure B. …………………… P Walsh Commissioner of the Court Annexure A (152946, pdf) Annexure B (213350, 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: 16 November 2023