Land and Environment Court New South Wales Medium Neutral Citation: Talebi v North Sydney Council [2024] NSWLEC 1821 Hearing dates: Conciliation Conference held 9 and 29 October, 8 November and 13 December 2024 Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No DA399/17 is further modified in the terms in Annexure A. (3) Development Consent No DA399/17 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – modification of consent – semi-detached dwelling – amendment to conditions of consent – retention of tree – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 98, 100, 113 Texts Cited: North Sydney Community Engagement Protocol 2019 Category: Principal judgment Parties: Arash Talebi (Applicant) North Sydney Council (Respondent) Representation: Counsel: E Flemming (Solicitor)(Applicant) J Corradini-Bird (Solicitor)(Respondent) Solicitors: Macpherson Kelley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2024/278840 Publication restriction: No 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) being an appeal against the refusal of Modification Application DA399/17/8 seeking consent to amend Development Consent DA 399/17 (as modified) issued by the Respondent on 16 August 2018 for "Alterations and additions to subdivide the existing dwelling house into a semi detached dwelling (2 residences with 4 bedrooms each), construction of a 2 car garage and rear lane access and associated landscaping" (the Consent) at 61 Ernest Street, Crows Nest legally described as Lot 1 in DP 926655 (the Site). 2. The Modification Application proposes "Alteration to Development Application Consent Conditions" to enable removal of a camphor laurel (Cinnamomum camphora) ('the Tree'), situated on the rear boundary of the Site with Burlington Lane. 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 has been held on 9 and 29 October and terminated on 8 November 2024. The parties continued discussions and sought a relisting for a conciliation conference under s 34 of the LEC Act and I presided over the conciliation conference on 13 December 2024. 4. The parties' experts have agreed that all contentions raised in the Statement of Facts and Contentions filed by the Respondent on 11 September 2024 (SOFAC) have been resolved by the preparation of: 1. the amended plans and document referred to at [23] (the Amended MA), and 2. the agreed modified conditions of consent. 1. 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 and approving the modification of consent subject to conditions. 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. 3. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify a consent. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied. 5. The Site and the adjoining property at number 63 Ernest Street, Crows Nest were in the ownership of the Applicant at the time of lodgment of the application to modify the consent. The current owner of the adjoining property at number 63 Ernest Street, Crows Nest has since provided owners consent. The agreed modified Condition C13(i) requires the written confirmation from a civil engineer and the project arborist upon further inspection of the existing Camphor Laurel tree's roots as to whether a timber sleeper wall is required for the Tree's preservation and to retain existing soil around the Tree. If the timber sleeper wall is assessed by them as required, its design must be prepared by a structural engineer and generally in accordance with the concept civil design by Pantanial Consulting, Drawing SK-C01, Revision 3, dated 7 November 2024 (subject to the requirements of Condition C13(t)) and confirmed by the project arborist and construction supervised by the project arborist. 6. Because the timber sleeper wall, if required in accordance with Condition C13(i), is to be located along the boundary line of Nos 61 and 63 Ernest Street to Burlington Lane (subject to the written confirmation by the civil engineer and the project arborist), it will require landowner's consent by the adjoining landowner for 63 Ernest Street (being Lot 1 DP 926654). In this regard, the owner of that adjoining site is Ashkan Talebi. The Amended MA is accompanied by the consent of Ashkan Talebi as required by s 98(1) of the Environmental Planning and Assessment Regulation 2021. 7. In satisfaction of s 4.55(2)(c) of the EPA Act, the MA was notified from 8 March 2024 to 22 March 2024 in accordance with the North Sydney Community Engagement Protocol and six submissions were received during the notification period. Objectors also were able to make oral submissions on site at the commencement of the conciliation conference on 9 October 2024. The objectors raised the following issues: 1. The Camphor Laurel tree should be retained for its historical and community significance, and to maintain privacy for neighbours; 2. Removal of the Tree would cause further damage to infrastructure, may impact the water table and foundations of nearby buildings and would remove local habitat; 3. The Tree provides privacy for some neighbours from the (approved) development; 4. Previous attempts to have the Tree removed have been refused; and 5. The Tree is located in a heritage conservation area to provide amenity and shade. 1. During the course of the Proceedings, the Applicant, with the consent of the Respondent, amended the MA. The extent of the changes to the MA involves an amendment to the approved engineering plans and associated conditions of consent relating to the construction of the kerb and gutter on Burlington Lane and consequential changes to the construction of the laneway, to preserve the existing Camphor Laurel tree (proposed Modifications). 2. In accordance with the North Sydney Community Engagement Protocol adopted in November 2019, the Amended MA was not re-notified as the Council formed the opinion that the amendments do not increase, or have lessened, any adverse effect on adjoining or neighbouring land. 3. The test in s 4.55(2)(a) of the EPA Act as stated in the statutory provision is that the modified development "is substantially the same development" as the originally approved development and calls for a comparison between the development as proposed to be modified and the development as originally approved. That comparison may be done as a quantitative and qualitative assessment and may include an assessment of the impacts. That comparison is undertaken below. 4. The quantitative changes can be summarised as follows: 1. The proposed Modifications are in relation to the reconstruction of the kerb and gutter that are damaged by the existing Camphor Laurel tree at the Site's rear boundary to Burlington Lane and deletion of the requirement to carry out road works to the laneway. The existing Camphor Laurel tree, which was originally approved for retention, is now proposed to be retained under the MA because of the proposed Modifications. 2. The proposed Modifications do not otherwise alter the approved gross floor area, floor space ratio, landscaped area, height or layout of the Approved Development. 1. The qualitative changes can be summarised as follows: 1. The proposed Modifications will not alter or transform the external form or appearance of the Approved Development, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views and visual bulk. 2. The proposed Modifications relate to minor adjustments to the proposed civil works to reconstruct the kerb and gutter which were damaged by the existing Camphor Laurel tree adjoining Burlington Lane, and consequential changes to the construction of the new full length layback to transit and connect the reconstructed kerb and gutter to the existing adjoining kerb and gutter to Burlington Lane. The proposed Modifications also add a new steel post and timber sleeper retaining wall to retain the nominal soil and loose material that is around the Tree. 3. These proposed Modifications are for the purposes of retaining the Camphor Laurel tree. The proposed Modifications would maintain the overall presentation of the Approved Development. 1. The proposed Modifications do not result in a radical transformation of the Approved Development. The proposed Modifications do not cause any significant adverse impacts upon the streetscape or the adjoining properties. The essence of the development remains the same. The Respondent agrees that the development as proposed in the Amended MA is substantially the same as the development for which consent was originally granted. 2. Based on the above, the Court can be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 3. Section 4.55(2)(b) of the EPA Act relates to consultation with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of approval proposed to be granted by the approval body. This is not relevant as no such condition was imposed on the consent. 4. Section 100(3) of the Environmental Planning and Assessment Regulation 2021 requires that a modification application under s 4.55(2) of the EPA Act relating to BASIX development must be accompanied by the BASIX certificate. The Proposed Modification does not propose any changes to the approved built form of the dwellings. Therefore, the BASIX Certificate Nos A315377_02 and A315375_03 issued in support of the Consent remain valid. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment. 6. 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. Notations: 1. The Court notes that: 1. The Council, as the relevant consent authority, has approved pursuant to section 113 of the Environment Planning and Assessment Regulation 2021 the Applicant modifying Modification Application No DA399/17/8 in accordance with the amended documents filed with the Court as described in the table below. Drawing No and Revision Title Prepared by Date Civil Works Plan 1. Drawing No. SK-C01, Issue 03 Burlington Lane Civil Works Plan and Details Pantanial Consulting 7 Nov 2024 Document(s) 2. Consent to Modification Application No. DA399/2017/8 Ashkan Talebi 29 Oct 2024 Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development Consent No DA399/17 is further modified in the terms in Annexure A. 3. Development Consent No DA399/17 as modified by the Court is Annexure B. E Espinosa Commissioner of the Court Annexure A Annexure B Civil Concept Plan ********** 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: 19 December 2024