Beaini Corp Pty Limited v Georges River Council

[2023] NSWLEC 1318

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beaini Corp Pty Limited v Georges River Council [2023] NSWLEC 1318

Hearing dates:

Conciliation conference on 5 and 6 June 2023

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA2021/0227 for demolition of existing structures and construction of a detached dual occupancy at 37 Inverness Avenue, Penshurst is modified in the terms set out in Annexure “A”.

(3) Development consent DA2021/0227 as modified by the Court is at Annexure “B”.

Catchwords:

APPEAL – modification application – modification of a consent for a detached dual occupancy – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, cll 100, 113

Land and Environment Court Act 1979, ss 34, 34AA

Category:

Principal judgment

Parties:

Beaini Corp Pty Limited (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Respondent)
J Fan (Solicitor) (Respondent)

Solicitors:
Pikes Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/7575

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the construction of a detached dual occupancy at 37 Inverness Avenue, Penshurst. The proposed modification includes seeking consent for the use of constructed built form that was not consistent with the built form approved by the development consent, including changes to the building envelope and to the roof form. It also seeks to modify the consent to include prospective fit out works for the building in accordance with plans that modify the approved design. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal 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 [11] 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 arrange 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 5 June 2023. 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 final signed agreement was filed on 8 June 2023, following the approval by the Council of an amendment to the modification application, pursuant to cl 113(4) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by a jurisdictional note provided by email on 13 June 2023, which sets out the jurisdictional matters about which the consent authority must be satisfied. I have considered the contents of the jurisdictional note, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in Condition 1 (of Annexure A), and the assessment report concerning the development application DA2021/0227. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

5. 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 the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, on the basis that the consent as modified maintains the proposed use as a detached dual occupancy and generally maintains the approved built form envelope, and that the changed roof form from a pitched roof to a flat roof form does not so alter the development such as to render it not substantially the same.

6. The modification application was notified by Council between 6 to 20 October 2022. In response to the notification of the application, no submissions were received.

7. Consistent with the requirements of cl 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 2 June 2023.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the proper 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)).

9. 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 modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

10. The Court notes that:

1. Georges River Council, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the modification application to:

1. seek consent for use only of those existing works as shown on the as built survey plans prepared by CMS Surveyors Pty Ltd, being:

1. 22166 Gnd as built dated 28 February 2023;

2. 22166 Level 1 dated 28 February 2023;

3. 22166 Compliance 3 gnd dated 27 April 2023;

4. 22166 compliance 3 1st dated 27 April 2023;

5. 22166 build 1 elevations dated 2 May 2023;

6. 22166 build 2 elevations dated 2 May 2023.

2. seek consent for the remaining works to be completed which are fit out works, landscaping works, and fencing.

3. rely on the following amended plans and documentation:

1. Architectural Plans (Revision C) prepared by Habitat Housing and dated 10 May 2023;

2. Landscape Plans (Revision C) prepared by Zenith Landscape Design dated 11 May 2023;

3. Civil Design Certificate prepared by CSY Advanced Engineers dated 6 May 2023;

4. BASIX Certificates prepared by Architek and dated 2 June 2023.

11. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA2021/0227 for demolition of existing structures and construction of a detached dual occupancy at 37 Inverness Avenue, Penshurst is modified in the terms set out in Annexure “A”.

3. Development consent DA2021/0227 as modified by the Court is at Annexure “B”.

J Gray

Commissioner of the Court

(Annexure A) (147059, pdf)

(Annexure B) (353821, pdf)

**********

Decision last updated: 21 June 2023