Ellis v Inner West Council [2019] NSWLEC 1542

Land and Environment Court New South Wales

Medium Neutral Citation: Ellis v Inner West Council [2019] NSWLEC 1542 Hearing dates: Conciliation conference on 1 November 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 3 of Annexure "A". (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties agree that no costs are payable by the applicant. (3) The appeal is upheld. (4) Modification Application Number M/2019/39 – Appeal No. 255721 of 2019 for the modified vergola at 122 Young Street, Annandale, NSW is approved subject to the conditions set out in Annexure "A". Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Philippa Ellis (Applicant) Inner West Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)

Solicitors: McKees Legal Solutions (Applicant) Inner West Council (Respondent) File Number(s): 2019/ 255721 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 ('EP&A Act') against the Respondent's determination of a modification application made pursuant to s 4.55(1A) of the EP&A Act. 2. The modification application (M/2019/39) sought to modify Development Consent No. D/2014/132 which was issued as a deferred commencement consent on 20 June 2014 for alterations and additions to the existing commercial building and use as part commercial and part residential. The site is legally defined as Lots 33 and 34 in Section 34 in DP 796 and is known as 122 Young Street, Annandale. The site is part commercial building and part residential dwelling. The site/building is not a heritage item but is located within a heritage conservation area. 3. On 28 June 2019, Council approved the modification application which involved various internal and external changes. Condition 4(c) of the approved modification application required the deletion of a proposed vergola roof over an external patio. This element would be higher than the previous approved roofing and Council was dissatisfied with the change from a heritage perspective. 4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 1 November 2019 and at which I presided. At the conciliation conference, the parties evidenced an 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 granting consent to the modification application. 5. The agreement involves a change to the proposal whereby the vergola roof would decrease in its height to a level which satisfies the Council's heritage concerns. 6. 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. 7. The parties' decision involves the Court granting leave to amend the application and exercising the function under s 4.55(1A) of the EP&A Act to grant consent to the modification application in accordance with the agreement. The parties indicated there were no jurisdictional impediments to these actions. 8. In regard to jurisdiction, I note the following: * Having regard to s 4.55(1A)(a), I am satisfied that the proposed modification is of minimal environmental impact. * Having regard to s 4.55(1A)(b), I am 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. * Having regard to s 4.55(1A)(c), I am satisfied from the advice of the parties and reviewing Council's assessment report (a copy of which was provided to me) in regard to notification. The advice is that notification occurred for 14 days in accordance with requirements and no submissions were received. * Having regard to s 4.55(3) of the EP&A Act, I am also required to take into consideration such of the matters referred to in s 4.15(1) of the EP&A Act as are of relevance to the application, and the reasons given by the consent authority for the grant of the consent that is sought to be modified. Again noting the content of the Council's assessment report, I have taken these matters into account and am satisfied in regard to them. 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court orders: 1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 3 of Annexure "A". 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties agree that no costs are payable by the applicant. 3. The appeal is upheld. 4. Modification Application Number M/2019/39 – Appeal No. 255721 of 2019 for the modified vergola at 122 Young Street, Annandale, NSW is approved subject to the conditions set out in Annexure "A". ………………………. Peter Walsh Commissioner of the Court Annexure A (288 KB) Plans (769 KB)