Land and Environment Court New South Wales Medium Neutral Citation: John Robert Rousell v Singleton Council [2024] NSWLEC 1279 Hearing dates: Conciliation conference held on 7 May 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent 8.2022.239.1 is modified by consent in the terms set out in Annexure A. (3) Development Consent 8.2022.239.1 is subject to the consolidated conditions as modified by the Court and described in Annexure B. Catchwords: MODIFICATION APPLICATION – conditions relating to drainage – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, s 98 Singleton Local Environmental Plan 2013 Texts Cited: Singleton Development Control Plan 2014 Category: Principal judgment Parties: John Robert Rousell (First Applicant) Ann-Marie Gibbons (Second Applicant) Singleton Council (Respondent) Representation: Counsel: P Jayne (Solicitor) (Applicants) M Caban (Solicitor) (Respondent) Solicitors: SWS Lawyers (Applicants) Local Government Legal (Respondent) File Number(s): 2023/364718 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal relating to the refusal of Modification Application 8.2022.239.2 (the MA) seeking to amend conditions attached to Development Consent 8.2022.239.1 (the Consent), for the construction of a shed, attached carport and a water tank on Lot 102 Deposited Plan 1256208, also known as 9 Lancaster Close, Wattle Ponds (the site). 2. The Consent was approved by Singleton Council (hereafter the Council) on 18 May 2023. The MA was lodged on 1 August 2023 and determined refused by Council on 20 August 2023. 3. The MA appeal is made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), under consideration of s 4.55(1A). The MA seeks to modify Condition 8 of the Consent. 4. The Land and Environment Court (the Court) agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act), starting by MS Teams, and by request of the parties, without an onsite view. 5. Based on the deletion of Condition 8 of the Consent and addition of Condition 22A, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the Council has undertaken an appropriate merit assessment. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of ss 4.15(1) and 4.55, to modify the Consent, subject to Annexure A, and as described in Annexure B. 7. The requirements of s 4.55(1A) and (3) of the EPA Act are considered in the modification of the Consent, as follows: 4.55 Modification of consents—generally(cf previous s 96) …. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) 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 (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (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 (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. Subsections (1), (2) and (5) do not apply to such a modification. … (3) 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. 1. The modification to the Consent, as described in Annexure A, is substantially the same as originally approved, specifically with regards to the intent of the Consent to ensure appropriate stormwater drainage. The original Consent always sought to provide appropriate drainage to address nuisance flows sourced from beneath Retreat Road. 2. The amended Conditions (8 and 22A) described in Annexure A are consistent with the original Consent, although provides for a more skilful stormwater design that allows for appropriate landscaping. 3. The requirements of s 4.55(1A)(a) and (b) of the EPA Act are considered satisfied by the amendments made to the Consent. 4. The Council confirms that no notification of the MA was made, pursuant to the requirements of the Singleton Development Control Plan 2014 (SDCP). The Court was advised that there were no objections that related to the Consent. Subsections 4.55(1A)(c) and (d) of the EPA Act are satisfied. 5. I am satisfied that the amendments made to the Consent, as described in Annexure A, will cause no (further) environmental impact. I am satisfied that the proposed design of the swale and stormwater drainage will effectively manage stormwater (overland) flows. 6. The amendments to the Consent address all relevant jurisdictional requirements and are consistent with the provisions of the Singleton Local Environmental Plan 2013. The relevant requirements of the SDCP are also achieved. In satisfaction of the requirements of s 4.15(1) of the EPA Act, the Consent remains substantially unchanged with regards to any environmental impact, with an improved stormwater design. The requirements of s 4.55(3) are addressed. 7. I am satisfied, based on the evidence before the Court, that pursuant to s 4.55 of the EPA Act, there are no jurisdictional impediments to the modification to the Consent, as described in Annexures A and B. I have considered the evidence of the experts. 8. All works and actions relied on by the MA are specific to the site and the Applicants are the owners of the site, pursuant to s 98(1)(a) of the Environmental Planning and Assessment Regulation 2021. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent 8.2022.239.1 is modified by consent in the terms set out in Annexure A. 3. Development Consent 8.2022.239.1 is subject to the consolidated conditions as modified by the Court and described in Annexure B. Sarah Bish 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: 28 May 2024