Mazzeo v Inner West Council [2020] NSWLEC 1163

Land and Environment Court New South Wales

Medium Neutral Citation: Mazzeo v Inner West Council [2020] NSWLEC 1163 Hearing dates: Conciliation conference on 1-2 April 2020 Date of orders: 08 April 2020 Decision date: 08 April 2020 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: APPEAL – modification application – modifications to dwelling house – conciliation conference – agreement reached Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Catherine Mazzeo (Applicant) Inner West Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) G Christmas (Solicitor) (Respondent)

Solicitors: D G Briggs and Associates (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2019/247824 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns the grant of an application to modify a development consent for the demolition of existing structures and the construction of a four storey dwelling with a boat shed and carport at 109 Louisa Road, Birchgrove. The modification application was lodged on 11 April 2019, and sought modifications to the approved building form including the addition of external stairs cut through the existing rock outcrop, the extension of the lift shaft to terminate at the roof top terrace and the addition of a concrete slab over garage entrance. The application was granted on 1 August 2019, with conditions that required the deletion of the extension to the lift shaft and the deletion of the external stairs. The appeal against that determination 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 1 April 2020, and continued on 2 April 2020. I presided over the conciliation conference. 3. At 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 leave to amend the modification application, and for the grant of the modification application, pursuant to s 4.55(2) of the EPA Act. The amendment to the modification application reduced the extent of the cutting of the rockface to create the stairs. What is now proposed, as detailed in the South Elevation (Plan 7 of 14 Issue E) and in the Section (Section D-D Plan 12 of 14 Issue E), is an arched opening, or tunnel, in the rock face to accommodate stairs that are cut into the rock face with a width of 2m and an archway cut into the rock to provide headroom with a maximum height of 2100mm at its apex. A gentle gradient of steps is proposed within the rock to provide access from the rear yard area to the lower-lower ground floor terrace and the archway opening is to continue through the rock for that purpose. This design is acceptable to the Council. The amended application also reduced the height of the lift enclosure and provided details for that lift enclosure. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that, consistent with what is required by s 4.55(2)(a) of the EPA Act, 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 reason that it involves alterations to the external stairs, lift shaft and slab over the carport, which do not qualitatively or quantitatively change the dwelling in any material manner. 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 LEC Act also requires 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 development application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 7. The Court orders that: 1. The Applicant is granted leave to rely on the following amended plans referred to in condition 1 of Annexure A: Document Prepared by: Drawing No Issue Date Site Plan J.A. Anzini Drafting and 1 of 14 E 1/4/20 Building Services Lower – Lower – Ground Floor J.A. Anzini Drafting and 2 of 14 E 1/4/20 Plan Building Services Lower – Ground Floor Plan J.A. Anzini Drafting and 3 of 14 E 1/4/20 Building Services Ground Floor Plan J.A. Anzini Drafting and 4 of 14 E 1/4/20 Building Services First Floor Plan J.A. Anzini Drafting and 5 of 14 E 1/4/20 Building Services Roof Plan J.A. Anzini Drafting and Building Services 6 of 14 E 1/4/20 North & South Elevations J.A. Anzini Drafting and Building Services 7 of 14 E 1/4/20 West Elevation J.A. Anzini Drafting and Building Services 8 of 14 E 1/4/20 East Elevation J.A. Anzini Drafting and Building Services 9 of 14 E 1/4/20 Section A-A & Driveway Profile J.A. Anzini Drafting and Building Services 10 of 14 E 1/4/20 Section B-B & Window Schedule J.A. Anzini Drafting and Building Services 11 of 14 E 1/4/20 Section D-D J.A. Anzini Drafting and Building Services 12 of 14 E 1/4/20 Waste Management/Sediment Control Plan J.A. Anzini Drafting and Building Services 13 of 14 E 1/4/20 General Notes & Specification Notes J.A. Anzini Drafting and Building Services 14 of 14 E 1/4/20