Loukis v Bayside Council [2020] NSWLEC 1175

Land and Environment Court New South Wales

Medium Neutral Citation: Loukis v Bayside Council [2020] NSWLEC 1175 Hearing dates: Conciliation conference on 26 February 2020 Date of orders: 14 April 2020 Decision date: 14 April 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [11] Catchwords: Section 4.55 modification application – secondary dwellings - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Rockdale Development Control Plan 2011 Category: Principal judgment Parties: Rhonda Loukis (Applicant) Bayside Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Cole (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 19/259449 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Bayside Council (Council) of the modification application no. DA-2017/523/B lodged with Council pursuant to s 4.55(2) of the EPA Act (the modification application). In exercising the functions of consent authority on the appeal, the Court has the power to determine the modification application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The modification application relates to a 742 m2 parcel of land identified as Lot 126 DP 2008 at 38 Russell Avenue, Sans Souci (the site). The modification application seeks to amend a development application (DA-2017/532) as approved by Council on 16 February 2018 for "demolition of all existing structures and construction of a two storey attached dual occupancy with swimming pool and rear secondary dwellings, and Torrens Title subdivision into two lots" (the original approval). The Condition 2 of the original approval listed the approved plans, the majority of which are dated 12 January 2018. 3. The original approval was then modified with the approval of DA-2017/523/A on 29 May 2018 (the first modification application) to delete Condition 32 requiring registration of an easement, which had been inserted in the original consent in error. 4. The modification application, as submitted to Council on 11 September 2019, (DA-2017/523B) sought consent to increase the height of the two secondary dwellings from one to two storeys, with a single garage for each of the secondary dwellings on the ground floor, accessed of Russell Lane. The modification application was refused by Council on 21 February 2019. 5. According to the uncontested Statement of Facts and Contentions prepared by the Council and filed with the Court on 24 September 2019 (SOFC) a Review of Determination application made under s 8.2 of the EPA Act (the s 8.2 application) was lodged with Council on 11 March 2019. The SOFC also states that "The development application was advertised and notified in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and the Rockdale DCP, Part 8 Notification between 18 March 2019 and 3 April 2019. No objections were received during the notification period." The s 8.2 review application was refused by the Bayside Planning Panel on 11 June 2019, and this Class 1 appeal was filed with the Court on 20 August 2019. 6. 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 26 February 2020. I presided over the conciliation conference. The conciliation conference commenced with a site view. There were no aural submissions from objectors at the site view. 7. After the conciliation conference, the parties reached an agreement filed with the Court on 18 March 2020 as to the terms of a decision in the proceedings that would be acceptable to the parties (the agreement). The agreement was based on amended plans upon which the parties sought to rely, as prepared by RM Designers and listed in paragraph 2 of the agreement. The main difference with the amended plans is that each of the secondary dwelling parking spaces is no longer provided in an enclosed garage, but rather in a largely open space enclosed on one side and by the floor above. 8. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph 9 below.