Land and Environment Court New South Wales Medium Neutral Citation: Lamar 18 Pty Ltd v Waverley Council [2018] NSWLEC 1677 Hearing dates: Conciliation conference on 20 November 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [8] below Catchwords: APPEAL – modification application – residential flat building - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Lamar 18 Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Solicitors: G Green, Pikes & Verekers Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/148717 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of a modification application (DA-482/2016/A) seeking to modify a development consent for a residential flat building at 701 Old South Head Road, Vaucluse, by inter alia the addition of two units on a new storey and the lowering of the building. The appeal is 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 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 [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 30 November 2018. I presided over the conciliation conference. 3. Following an adjournment of the conciliation conference, amendments were made to the modification application by leave granted by the Registrar on 27 November 2018. Those amendments reduced the scope of the modification application. 4. As a result, after 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 decision agreed upon is 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 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 following reasons: * Qualitatively, the proposal results in a residential flat building consistent with the building approved by the development consent. Both the approved development and the proposed modified development include articulation of the upper level to reduce its bulk. Contrary to submissions by Mr Page, an objector to the modification application, I am not satisfied that there is any essential element of the development the subject of the consent that is being altered by the modification application. It is agreed by the parties, and I accept, that the view corridor on the southern side of the approved building is not an essential element of the development. * Quantitatively, the proposed residential flat building as modified provides a relatively small increase in apartment yield with two additional apartments. Although the addition of an extra storey to the development is a significant change, the overall height of the development remains the same and the additional storey does not so alter the development such as to render it not substantially the same. 1. In forming this state of satisfaction, I was assisted by a letter from the applicant and submissions from the respondent, the latter which also attached and responded to a letter from the legal representative of Mr Page dated 12 December 2018. 2. 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)). 3. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.55 of the EPA Act. 4. 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. Development application DA 482/2016 is modified in accordance with modification application 482/2016/A subject to the modified conditions at annexure "A". The modifications comprise, inter alia, the introduction of two additional units to the approved 17 unit residential flat building at 701-701 Old South Head Road, Vaucluse. A full set of the conditions as modified is at annexure "B" to this agreement. Addendum made on 4 March 2019 1. On 26 February 2019, the Council made an application to amend the orders made on 20 December 2018. That application is made pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, which allows a correction of a "clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order." 2. The application is made with the consent of the applicant, and is made as a result of an inconsistency between the plans the subject of the amended modification application for which leave was granted on 27 November 2018, and two of the section drawings. By an accidental omission, those two sections (DA 20 and DA 21) were not updated to reflect the changes made to the plans. The amended modification application formed the subject of the agreement between the parties for the approval of the modification application. What resulted was an accidental slip or omission in condition 1 of Annexure A and condition 1 of Annexure B to the orders made on 20 December 2018, in which the plans the subject of the agreement were approved but a reference to the sections (DA 20 and DA 21) that were not updated was also included. 3. I am satisfied that this is an accidental slip or omission that can be amended pursuant to the slip rule. The sections have now been updated to reflect the balance of the approved plans which were the subject of the agreement. Accordingly I make orders in chambers as follows: 1. By consent and pursuant to UCPR 36.17, condition 1 of Annexure A and condition 1 of Annexure B to the orders made on 20 December 2018 are amended to refer to DA 20 Revision F and DA 21 Revision F dated 12 February 2019, in lieu of DA 20 Revision E and DA 21 Revision E dated 29 August 2017. The words "and 13 February 2019" are also added to the end of (a)(i) of each condition 1. 1. As a consequence, the final orders made on 20 December 2018 to give effect to the parties' agreement, as amended on 4 March 2019, are: 1. The appeal is upheld. 2. Development application DA 482/2016 is modified in accordance with modification application 482/2016/A subject to the modified conditions at annexure "A". The modifications comprise, inter alia, the introduction of two additional units to the approved 17 unit residential flat building at 701-701 Old South Head Road, Vaucluse. A full set of the conditions as modified is at annexure "B". ………………………. Commissioner Gray Annexure A Annexure B DA11 (F) GROUND FLOOR PLAN DA12 (F) LEVEL 1 PLAN DA13 (F) LEVEL 2 PLAN DA14 (C) LEVEL 3 PLAN DA15 (F) ROOF PLAN DA22 (G) WEST ELEVATION DA23 (G) EAST ELEVATION DA24 (G) NORTH ELEVATION DA25 (G) SOUTH ELEVATION Amendments 08 March 2019 - Orders amended pursuant to UCPR 36.17 (see Addendum at [9]-[12]) 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: 08 March 2019