MOD Urban Pty Ltd v Waverley Council [2024] NSWLEC 1823

Land and Environment Court New South Wales

Medium Neutral Citation: MOD Urban Pty Ltd v Waverley Council [2024] NSWLEC 1823 Hearing dates: Conciliation conference on 6 December 2024 Date of orders: 19 December 2024 Decision date: 19 December 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No. 404/2021 is modified by the documents set out in Annexure A, by the terms set out in Annexure B. (3) Development Consent No. 404/2021 as modified by the Court is Annexure C. Catchwords: MODIFICATION APPLICATION – dwelling house - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.56, 8.7, 8.15 Land and Environment Court Act 1979, s 34, s 34AA Cases Cited: Dowse v Waverley Council [2022] NSWLEC 1260 Category: Principal judgment Parties: MOD Urban Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: P Holland (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)

Solicitors: Gadens (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2024/316576 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination of a review of the modification application for DA-404/2021/1/B (modification application). DA/404/2021 is a court granted development consent for alterations and additions to an existing dwelling including an attic at 77 Fletcher Street, Tamarama (legally known as Lot 19 in DP10118) (site). 2. The proposed modifications as described in the jurisdictional statement are: "Modifications to conditions Deletion of conditions 2(a), 2(d) 3(a) and 3(b). Modification of the approved two (2) storey dwelling, comprising: Basement: Retention of the existing lower ground level and internal reconfiguration to include a store and pool amenities room, bathroom, shower, laundry and storeroom. That is, remove the requirement to infill condition; an external door is proposed on the southern wall leading directly to the rear private open space, and an internal staircase access to the ground floor level. Ground Floor: An external door is proposed on the southern wall leading directly to the rear private open space. Mid-floor level: An external door is proposed on the southern wall leading directly to the rear private open space. First Floor: Internal reconfiguration of the floor layout, namely the location of the internal staircase and Screening, is proposed for the western part of the south-facing window labelled W10. The retention of the carport structure and hardstand car space." 1. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties on 6 December 2024. I presided over the conciliation conference. 2. 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 approving the modification application and modifying the development consent. 3. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 4. 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. 5. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent.