Land and Environment Court New South Wales Medium Neutral Citation: Lipman v Waverley Council [2020] NSWLEC 1211 Hearing dates: Conciliation conference on 6 May 2020 Date of orders: 12 May 2020 Decision date: 12 May 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court Orders: (1) Leave is granted to the Applicant to rely upon the amended plans as referred to in the conditions 1(a)(ii) and 1(c). (2) The appeal is upheld. (3) Modification application DA43/2018/B for the modification to approved dual occupancy development including altered basement layout to accommodate one additional car parking space and additional floor area at the first and second levels is approved subject to the conditions of consent at 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 Waverley Local Environmental Plan 2012 Category: Principal judgment Parties: Jeff Lipman (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/290304 Publication restriction: No Judgment 1. COMMISSIONER: Jeff Lipman (the Applicant) has appealed the decision of Waverley Council (the Respondent) to refuse his application to modify development consent DA43/2018/A, granted for a dual occupancy development (the development consent) at 2 Wallis Parade, North Bondi (the Subject Site). 2. The modification application seeks approval for an altered basement layout to accommodate one additional car parking space and additional floor area at the first and second levels. 3. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court's jurisdiction. 4. These proceedings are determined pursuant to the provisions of s 4.56 of the EP&A Act. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 6 May 2020 by teleconference, and I have presided over the conciliation conference. 6. At the conciliation conference, the Parties reached 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 Applicant's modification application, subject to conditions. 7. 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 4.56 of the EP&A to approve the Applicant's modification application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. the provisions of cl 4.56(1) of the EP&A Act which require that a consent authority, or the Court on appeal: 1. is satisfied that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified (if at all); 2. it has notified the application in accordance with: 1. the regulations, if the regulations so require; and 2. a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent. 1. it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person; and 2. it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. 1. the provisions of cl 4.56(1A) of the EP&A Act, which require that a consent authority, or the Court on appeal: 1. in determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. The Parties have explained, and I accept, that the above jurisdictional prerequisites have been satisfied, as follows: 1. in relation to the requirements of cl 4.56(1)(a) of the EP&A Act, the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted because the modification continues to be for a dual occupancy development of the similar bulk and scale as has previously been approved by the Court, and as modified, which is the purpose for which development consent DA43/2018/A was originally granted by the Court; 2. the modification application has been properly notified as required under the provisions of cl 4.56(1)(b) and (c), and no submissions were received in response to that notification; 3. as no submissions were received the provisions of cl 4.56(1)(d) do not apply; 4. the matters referred to in s 4.15(1) as they are of relevance to the Proposed Development, and which are the subject of the application the modification application, including in relation to the breach of the floor space ratio (FSR) development standard applicable to the Subject Site under the provisions of cl 4.4 of Waverley Local Environment Plan 2012 (WLEP), have been considered and assessed on a merits basis; 5. the Court has power to uphold an appeal in which a modification application includes a proposed breach of the FSR development standard applicable to the Subject Site under the provisions of cl 4.4 of WLEP without the requirement for the Applicant to prepare a written request under cl 4.6 of the WLEP; and 6. the reasons given by the Court for the grant of the consent that is sought to be modified have been considered. 1. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.56(1) and 4.56 (1A) of the EP&A Act have been so satisfied. 2. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, for reasons provided at [9] and [9]. 3. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties' decision. 4. The Court orders: 1. Leave is granted to the Applicant to rely upon the amended plans as referred to in the conditions 1(a)(ii) and 1(c). 2. The appeal is upheld. 3. Modification application DA43/2018/B for the modification to approved dual occupancy development including altered basement layout to accommodate one additional car parking space and additional floor area at the first and second levels is approved subject to the conditions of consent at Annexure 'A'. …………………………….. M Chilcott Commissioner of the Court Annexure A (82.3 KB) ********** 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: 12 May 2020