Australia, Jan. 17 -- New South Wales Land and Environment Court issued text of the following judgement Dec. 19:

1. COMMISSIONER: This is an appeal, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal of Modification Application No. 146/2018/4 made pursuant to the provisions of s 4.56 of the EPA Act to modify Development Consent No. 146/2018 granted on 2 January 2019 (Elkorr v Woollahra Council [2019] NSWLEC 1000) (as modified on 23 December 2019) for alterations and additions to approved dwelling including construction of new boat shed, construction of raised planters within the dwelling, removal of trees and new landscape works, at 9 Sutherland Crescent, Darling Point (Lot 2 of DP1189573) (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 November 2024. I presided over the conciliation conference. 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. 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 EPA Act to modify the development consent.

3. The two modification applications, each to modify a different development consent relating to the same site, were the subject of the conciliation conference on 25 and 26 November 2024. The other appeal is JN Development Management Pty Ltd v Woollahra Municipal Council, File Number 2024/211637.

4. There are preconditions to the exercise of power to modify the development consent.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following plans and documents:

Table omitted can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d20e9256f99cbed4cd257)

Pre-conditions to the grant of consent The relevant terms of s 4.56 of the EPA Act are:

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if-

(a) it is 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 (if at all), and

(b) it has notified the application in accordance with-

(i) the regulations, if the regulations so require, and

(ii) 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, and

(c) 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

(d) 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.

(1A) 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 section 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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d20e9256f99cbed4cd257)

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