Land and Environment Court New South Wales Medium Neutral Citation: Spencer v Inner West Council [2024] NSWLEC 1244 Hearing dates: Conciliation conference on 10 May 2024 Date of orders: 10 May 2024 Decision date: 10 May 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, development consent DA/2023/0363 for alterations and additions to an existing attached dwelling at 51 Glassop Street, Balmain, is modified in the terms in Annexure A. (3) The terms of the consolidated Development Consent No DA/2023/0363 are set out in Annexure B. Catchwords: APPEAL – modification application – alterations and additions to an attached dwelling – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 100 Category: Principal judgment Parties: Andrew Spencer (Applicant) Inner West Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent) File Number(s): 2024/94154 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a modification application lodged by the applicant with the respondent on 28 November 2023, which seeks to modify a development consent (DA/2023/0363) for alterations and additions to an attached dwelling at 51 Glassop Street, Balmain. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The modification application seeks to modify the design of the built form, including installation of skylights and changes to the balconies from bedrooms 1 and 2, and also seeks to modify condition 8 concerning the retention of Tree 2. 3. 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 10 May 2024. I presided over the conciliation conference. 4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects that which was filed on 2 May 2024. 5. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act, except that condition 8 of the development consent is agreed to remain unchanged. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites. Based on the Agreed Statement, the Statement of Environmental Effects dated October 2023 and the documents that accompany the Class 1 Application, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act. 6. 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 that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reasons that there are quantitatively few changes, confined to changes to the size and shape of balconies and to the installation of solar panels, and, on a qualitative comparison, the modifications involve changes only to aspects of the design and do not change any essential or material element of the development. 7. The modification application was notified by the respondent between 5 December 2023 and 19 December 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, no submissions were received. 8. Consistent with the requirements of s 100(3) of the Environmental Planning and Assessment Regulation 2021, the modification application is accompanied by the BASIX certificate dated 12 May 2023. 9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 11. The Court orders that: 1. The appeal is upheld. 2. Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, development consent DA/2023/0363 for alterations and additions to an existing attached dwelling at 51 Glassop Street, Balmain, is modified in the terms in Annexure A. 3. The terms of the consolidated Development Consent No DA/2023/0363 are set out in Annexure B. J Gray 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: 10 May 2024