Kovacs v The Council of the City of Sydney [2018] NSWLEC 1675

Land and Environment Court New South Wales

Medium Neutral Citation: Kovacs v The Council of the City of Sydney [2018] NSWLEC 1675 Hearing dates: Conciliation conference on 6 November and 11 December 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [7-8] below Catchwords: APPEAL - modification applications – terraces - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Richard Kovacs (Applicant) The Council of the City of Sydney (First Respondent) Heritage Council of New South Wales (Second Respondent) Representation: Counsel: C McEwen SC (Applicant) Z Heger (Second respondent)

Solicitors: King & Wood Mallesons (Applicant) M Flick, The Council of the City of Sydney (First Respondent) Department of Planning (Second Respondent) File Number(s): 2018/236943 & 2018/236953 Publication restriction: No

Judgment 1. COMMISSIONER: 7 and 9 Dalgety Road, Millers Point, are a pair of three storey brick Victorian Georgian terraces that date back to the 1840s. For each terrace, development consent has been granted for alterations and additions. The applicant appeals against two separate decisions given by the Council of the City of Sydney following applications to modify the development consent and conditions. In proceedings 2018/236943 the applicant is seeking modification of the consent and conditions issued under D/2017/1557/A in relation to 7 Dalgety Road, Millers Point. In proceedings 2018/236953, the applicant is seeking modification of the consent and conditions issued under D/2017/1556/A in relation to 9 Dalgety Road, Millers Point. The final orders in each appeal, outlined in [7-8] below, are made as a result of agreements between the parties that were reached following a conciliation conference. 2. The appeals are lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on appeal, the Court has the power to determine the modification applications pursuant to s 4.55(2) of the EPA Act. 3. The Court arranged conciliation conferences in each of the appeals under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which were held in both matters on 6 November 2018. I presided over the conciliation conference. 4. Following the conciliation conference, in each appeal 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. In each appeal, the decision agreed upon is for leave to be granted to amend the modification application and for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I was satisfied that the decision was one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction on the basis that, in each modification application, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, as each modification concerns quantitatively and qualitatively minor alterations to internal walls and fixtures. 5. 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 Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 6. 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 applications against the discretionary matters that arise pursuant to an assessment under s 4.55(2) of the EPA Act. 7. In matter number 2018/236943, the final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Appeal is upheld. 2. The Applicant is granted leave to rely on the amended plans, copies of which are attached at Annexure "A". 3. Modification Application D/2017/1557/A seeking to modify, delete or add to the conditions of Development Application D/2017/1557 is approved in accordance with the conditions in Annexure "B" and the Amended General Terms of Approval in Annexure "C". 4. The Court is satisfied that the requirements under s 4.55(2) have been met, including that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). 5. There is no order as to costs. The Court notes that the First Respondent's reasons for agreement to the terms of the decision are set out in Annexure 'D'. 1. In matter number 2018/236953, the final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Appeal is upheld. 2. The Applicant is granted leave to rely on the amended plans, copies of which are attached at Annexure "A". 3. Modification Application DA/2017/1556A seeking to modify, delete or add to the conditions of Development Application D/2017/1556 is approved in accordance with the conditions in Annexure "B" and the Amended General Terms of Approval in Annexure "C". 4. The Court is satisfied that the requirements under s 4.55(2) have been met, including that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all). 5. There is no order as to costs. The Court notes that the First Respondent's reasons for agreement to the terms of the decision are set out in Annexure 'D'. ………………………. Commissioner Gray 236943.18 Annexure A (Plans) 236943.18 Annexure B (C) 236943.18 Annexure C 236943.18 Annexure D 236953.18 Annexure A (Plans) 236953.18 Annexure B (C) 236953.18 Annexure C 236953.18 Annexure D