Land and Environment Court New South Wales Medium Neutral Citation: Alyas v Fairfield City Council [2024] NSWLEC 1017 Hearing dates: Conciliation Conference 20, 21 November 2023 Date of orders: 23 January 2024 Decision date: 23 January 2024 Jurisdiction: Class 1 Before: Targett AC Decision: The Court orders that: (1) The applicant is directed to file the amended modification application, the subject of Order (3) below, within seven days of the date of this order. (2) The appeal is upheld. (3) Modification application DA 123.3/2020 (as amended), for modifications to an approved 2-storey dwelling with attached alfresco and basement carpark at Lot 102 in Deposited Plan 616869, 115 Quarry Road, Bossley Park NSW 2170, as outlined in Annexure A to these orders, is approved. (4) Development consent granted by the respondent on 6 November 2020 (DA 123.1/2020) and modified on 4 February 2021 (DA 123.2/2020) is modified subject to the consolidated conditions of development consent set out in Annexure B. Catchwords: APPEAL – Modification Application – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.30, 4.55, 8.9, 8.10, 8.14, 8.25 Environmental Planning and Assessment Regulation 2021, s 113 Fairfield Local Environmental Plan 2013 cl 4.4, 4.6 Land and Environment Court Act 1979, ss 17, 34, 34AA Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Category: Procedural rulings Parties: Wisam Alyas (Applicant) Fairfield City Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) S Schneider (Solicitor) (Respondent) Solicitors: Madison Marcus Law Firm (Applicant) Houston Dearn O'Connor (Respondent) File Number(s): 23/192490 Publication restriction: Nil Judgment Background 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent's refusal of the applicant's modification application seeking to modify DA 123.1/2020 (Original Consent). The Original Consent was granted by the respondent under delegated authority on 6 November 2020 and approved the construction of a two-storey dwelling with attached alfresco and basement carpark on Lot 102 in Deposited Plan 616869, known as 115 Quarry Road, Bossley Park (Site). The Original Consent was modified following the approval by the respondent of modification application 123.2/2020. The modification application the subject of this appeal, now made under s 4.55(2) of the EPA Act, seeks to amend the Original Consent. 2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act. 3. There are presently related Class 1 proceedings on foot, being Wisam Alyas v Fairfield City Council (2023/229566) which concern an appeal by the applicant against the respondent's refusal of building information certification application (BIC 19.1/2023) lodged on 5 July 2023 (BIC Application), seeking to regularise various works already carried out at the Site without development consent (BIC Proceedings). The modification application 1. Modification application (MOD123.3/2020) was lodged with the respondent on 1 December 2022 pursuant to s 4.55(1A) of the EPA Act (Modification Application) and sought to amend the Original Consent by seeking a number of changes including: 1. increasing the floor area on the ground and first floors; 2. changing floor levels at various locations in the dwelling; 3. reducing landscaping and increasing hardstand areas; and 4. increasing the height of the dwelling and roof area. 1. The Modification Application was lodged following the carrying out of various works on the Site for which the applicant did not have development consent. The Modification Application therefore sought consent for both: 1. the use of those works constructed without development consent; and 2. additions and alterations which were yet to be carried out. 1. On 4 May 2023, the respondent refused the Modification Application. 2. On 16 June 2023, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent's refusal of its Modification Application (Modification Proceedings). 3. The Modification Proceedings were commenced within the appeal period prescribed by s 8.10 of the EPA Act. 4. On 5 July 2023, the applicant lodged the BIC Application. 5. On 14 July 2023, the respondent refused the BIC Application. 6. On 19 July 2023, the applicant commenced the BIC Proceedings under s 8.25 of the EPA Act. 7. The Court arranged a conciliation conference in the Modification Proceedings under s 34AA(2)(a) of the LEC Act between the parties which was held on 20 and 21 November 2023. The BIC Proceedings were also listed for a conciliation conference under s 34 of the LEC Act on the same dates. I presided over the conciliation conference in both matters. The Amended Modification Application 1. At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the Modification Proceedings that would be acceptable to the parties. A s 34 agreement was provided on 21 November 2023 following the applicant amending its Modification Application with the respondent's agreement and the parties agreeing that the Amended Modification Application should be determined under s 4.55(2) of the EPA Act. The agreed amendments to the Modification Application as lodged are shown on the architectural plans prepared by Karl Harb (Project 231017 Revision A dated 21 November 2023) and include: 1. reducing floor space on the ground and first floor through reducing the size of bedrooms and increasing size of balconies; 2. changing the RL and height of the storeroom to the south-west corner of the basement; and 3. increasing landscaped areas including by reducing the size of the swimming pool at the rear of the Site, (Amended Modification Application). 1. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement dated 21 November 2023. 2. 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. 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. Jurisdictional considerations 1. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis of the following matters. Owner's Consent 1. The Site is owned by P&P Alyas Investments Pty Ltd. The registered proprietor of the Site provided written consent to the Modification Application when it was lodged with the respondent. EPA Act 1. The parties agree that the Amended Modification Application is made pursuant to s 4.55(2) of the EPA Act. I am satisfied that the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted for the following reasons: 1. the modifications are relatively minor with the dwelling still presenting as two storeys with a basement with little visual change from the street; 2. the modifications do not result in a radical transformation of, or significant change to, the character of the development; and 3. the environmental impacts are minimal. 1. Section 4.55(2)(b) of the EPA Act does not apply to this matter. 2. In relation to s 4.55(2)(c), the respondent has confirmed that the Modification Application as lodged was notified in accordance with relevant requirements. 3. In relation to s 4.55(2)(d), no submissions were received as part of the notification process. 4. In respect of s 4.55(3), in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application. 5. Finally, for the purposes of s 4.55(3), the parties agree that there were no relevant reasons given by the consent authority for the grant of the Original Consent. Fairfield Local Environmental Plan 2013 1. The Site is zoned R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 (FLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone. 2. The parties agree that all relevant planning controls have been considered in the documents that comprised the Modification Application and the subsequent joint expert reports of the planning experts (filed 24 October 2023), structural engineers (filed 31 October 2023) and building code experts (filed 16 November 2023). 3. In accordance with cl 4.4 of the FLEP, the maximum floor space ratio (FSR) permissible on the Site is 0.45:1. The FSR proposed in the Amended Modification Application (0.58:1) exceeds the maximum FSR permissible on the Site under the FLEP. The parties agree that this exceedance is acceptable in the circumstances and that a variation request under cl 4.6 of the FLEP is not required due to the application being a modification application and not an application for development consent (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163). Swimming Pool 1. The agreement reached between the parties in the Modification Proceedings requires the applicant to reduce the footprint of the swimming pool which was approved under a complying development certificate issued by certifier, Andre Soliman of Building Certifiers on 17 May 2021 (CDC2020-1211), in order to increase the landscaped area at the rear of the Site. 2. CDC2020-1211 cannot be modified as part of the Amended Modification Application. Therefore, the parties agree that it is appropriate to impose a condition of consent requiring CDC2020-1211 to be modified in accordance with s 4.30 of the EPA Act before work recommences on the Site. BIC Proceedings 1. The BIC Proceedings have yet to be resolved. However, the parties have agreed that it is appropriate to impose a condition of consent in relation to the Amended Modification Application requiring the applicant to obtain a building information certificate in relation to any unauthorised building works undertaken and remaining at the Site prior to the issuing of an occupation certificate. Conclusion 1. As the parties' decision is a decision 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. 2. The Court notes that: 1. The respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Protection and Assessment Regulation 2021 to the applicant amending Modification Application 123.3/2020 by relying on the following amended plans: 1. architectural plans as prepared by Lucas Harb Design project 23107 drawings A.01.1, A.01.2, A.01.3, A.01.4, A.01.5, A.01.6, A02.1, A02.2 and A.02.3, all revision A dated 21 November 2023; and 2. stormwater concept plan prepared by J&F Designs drawing 5244-1 (sheets 1-9) all revision D dated 25 August 2023. Orders 1. The Court orders that: 1. The applicant is directed to file the amended modification application, the subject of Order (3) below, within seven days of the date of this order. 2. The appeal is upheld. 3. Modification application DA 123.3/2020 (as amended), for modifications to an approved 2-storey dwelling with attached alfresco and basement carpark at Lot 102 in Deposited Plan 616869, 115 Quarry Road, Bossley Parl NSW 2170, as outlined in Annexure A to these orders, is approved. 4. Development consent granted by the respondent on 6 November 2020 (DA 123.1/2020) and modified on 4 February 2021 (DA 123.2/2020) is modified subject to the consolidated conditions of development consent set out in Annexure B. N Targett Acting Commissioner of the Court ********** Annexure A 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: 23 January 2024