Theedam v Inner West Council [2023] NSWLEC 1792

Land and Environment Court New South Wales

Medium Neutral Citation: Theedam v Inner West Council [2023] NSWLEC 1792 Hearing dates: Conciliation Conference on 18 December 2023 Date of orders: 22 December 2023 Decision date: 22 December 2023 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is upheld. (2) Modification application MOD/2023/0172 is approved and development consent no. DA/2021/0793 is modified in the terms in Annexure A. (3) Development consent no. DA/2021/0793 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION – alterations and additions – heritage – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Trent Theedam (Applicant) Inner West Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) R Dunstan (Solicitor) (Respondent)

Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/326973 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against the determination of modification application MOD/2023/0172, for modifications to the approved ground and first floor additions, construction of a dormer walkway and internal reconfiguration at 34 Wharf Road, Birchgrove, legally described as Lot A in DP441954 (the site). The development consent sought to be modified is DA/2021/0793. 2. The Applicant's Statement of Facts and Contentions identifies the following condition as the issue in dispute: * Deletion of conditions 1(a) Design Change which states: * 1a. Design Change * Prior to the issue of a Construction Certificate, the Certifying Authority must be with amended plans demonstrating the following: 1. The rear roof plane is to be retained in its entirety, to mitigate adverse heritage impacts. 2. The proposed link between the attic space and first floor rear addition is to be deleted. 3. The skylight proposed in the rear roof plane, above the bathroom, is to be deleted. 4. The approved staircase in the rear addition is to be retained, to service the first floor of the rear addition. 1. Notwithstanding the condition in dispute, the entire modification application is the subject of this appeal. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties for 18 December 2023. I presided over the conciliation conference. 3. 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. This decision involved the Court upholding the appeal for the modification application and modifying the development consent. 4. Accompanying the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 5. 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. 6. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.