BG Sales Huskisson Pty Limited v Shoalhaven City Council

[2023] NSWLEC 1684

Land and Environment Court

New South Wales

Medium Neutral Citation:

BG Sales Huskisson Pty Limited v Shoalhaven City Council [2023] NSWLEC 1684

Hearing dates:

14 and 15 August 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No DA10/1377 is modified in the terms in Annexure A.

(3) Development Consent No DA10/1377 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of development consent for residential flat building – whether substantially the same development – urban design – flooding – public interest – orders

Legislation Cited:

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

Shoalhaven Local Environmental Plan 2014 cll 4.3. 4.4, 5.21

Environmental Planning and Assessment Regulation 2000, cl 121B

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Polisy No 65 – Design Quality of Residential Apartment Development

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited:

Shoalhaven City Council, Community Consultation Policy for Development Applications, October 2023

Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

BG Sales Huskisson Pty Limited (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
Dr J Smith (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Foundation Law Group (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/354269

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application DS22/1032 seeking approval to modify development consent No DA10/1377 for the construction of a 3 storey residential flat building containing 32 apartments over 1 level of basement parking for 64 cars with an associated swimming pool (the Consent) by modifying the consent as set out below at [21] (the Proposed Modification) at 4 Murdoch Street Huskisson legally described as Lot 80 DP 755928 (the Site).

2. The proceedings commenced onsite where a number of objectors gave evidence of their concerns regarding the Proposed Modification as to character and environmental impacts. A copy of written submissions from the objectors was tendered by the Respondent (Ex 4), objector handwritten notes (Ex 6) and a summary of concerns is included at paragraph 31 of the Statement of Facts and Contentions (SOFAC) filed by the Respondent on 3 February 2023 (Ex 1). I will come back to these concerns and the evidence of the experts.

3. On the first day of the hearing the Applicant moved on the Notice of Motion filed 10 August 2023 seeking to rely on amended plans and documents. The Court notes that the Respondent Council agreed, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the Proposed Modification by relying on the following documents:

DRAWING TITLE	NUMBER	REVISION/ ISSUE	DATE
ARCHITECTURAL DRAWINGS PREPARED BY KAVELLARIS URBAN DESIGN (KUD)
SUMMARY	TP001	1	11/08/2023
EXISTING SITE CONTEXT	TP002	1	11/08/2023
EXISTING SITE PLAN	TP002a	1	11/08/2023
PROPOSED SITE CONTEXT	TP003	2	14/08/2023
PROPOSED SITE PLAN	TP004	2	14/08/2023
PROPOSED GROUND FLOOR PLAN	TP100	1	11/08/2023
PRPOSED L1 PLAN	TP101	2	14/08/2023
PROPOSED L2 PLAN	TP102	2	14/08/2023
PROPOSED L3 PLAN	TP103	1	11/08/2023
PROPOSED ROOF PLAN	TP104	1	11/08/2023
GFA CALCULATIONS	TP110	2	14/08/2023
PROPOSED LEVEL 01 – BUILDING A	TP130	2	14/08/2023
PROPOSED LEVEL 02 – BUILDING A	TP131	2	14/08/2023
PROPOSED LEVEL 03 – BUILDING A	TP132	1	11/08/2023
PROPOSED LEVEL 01 – BUILDING B	TP133	1	11/08/2023
PROPOSED LEVEL 02 – BUILDING B	TP134	1	11/08/2023
PROPOSED LEVEL 03 – BUILDING B	TP135	1	11/08/2023
BUILDING A – EAST & WEST ELEVATION	TP201	2	14/08/2023
BUILDING A – NORTH & SOUTH ELEVATION	TP202	2	14/08/2023
BUILDING B – EAST & WEST ELEVATION	TP203	1	11/08/2023
BUILDING B – NORTH & SOUTH ELEVATION	TP204	1	11/08/2023
STREET ELEVATION	TP205	2	14/08/2023
SECTION 1-2	TP300	1	11/08/2023
SECTION 3-4	TP301	1	11/08/2023
OVERLOOKING SECTION NEIGHBOUR	TP310	1	11/08/2023
ADAPTED APARTMENTS APT B102	TP350	1	11/08/2023
ADAPTED APARTMENTS APT B202	TP351	1	11/08/2023
ADAPTED APARTMENTS APT B103	TP352	1	11/08/2023
ADAPTED APARTMENTS APT B203	TP360	1	11/08/2023
SHADOW DIAGRAM 9AM-10AM	TP400	2	14/08/2023
SHADOW DIAGRAM 11AM-12PM	TP401	2	14/08/2023
SHADOW DIAGRAM 1PM-2PM	TP402	2	14/08/2023
SHADOW DIAGRAMS 3PM	TP403	2	14/08/2023
9AM – JUNE 21	TP601	2	14/08/2023
10AM – JUNE 21	TP602	2	14/08/2023
11AM – JUNE 21	TP603	2	14/08/2023
12PM – JUNE 21	TP604	2	14/08/2023
1PM – JUNE 21	TP605	2	14/08/2023
2PM – JUNE 21	TP606	2	14/08/2023
3PM – JUNE 21	TP607	2	14/08/2023
PREVIOUS DA 9 & 10AM – JUNE 21	TP620	1	11/08/2023
PREVIOUSE DA – 11AM & 12PM – JUNE 21	TP622	2		14/08/2023
PREVIOUSE DA – 1PM & 2PM – JUNE 21	TP624	2		14/08/2023
3PM AND SCHEDULE – JUNE 21	TP626	2		14/08/2023
LANDSCAPE PLAN – GROUND FLOOR	LCD-001	F		14/08/2023
LANDSCAPE PLAN – LEVEL 1	LCD-002	E		14/08/2023
LANDSCAPE PLAN – LEVEL 2	LCD-003	E		14/08/2023
LANDSCAPE PLAN – LEVEL 3	LCD-004	E		14/08/2023
LANDSCAPE PLAN – ILLUSTRATIVE SECTION PLANTER FENCE	LCD-005	A		14/08/2023

4. The parties rely on the evidence in the Joint Planning and Urban Design Expert Report prepared by Andrew Vernez and Alexandra McRobert for the Respondent and Lee Carmichael and Rohan Dickson on behalf of the Applicant filed 8 August 2023 (Ex 4) which informs the Court that many of the contentions had been resolved as a result of the amending documents.

5. The Respondent sought an adjournment of a minimum of 14 days to notify the amended Proposed Modification. I heard submissions and ruled against the application because the Community Consultation Policy for Development Applications (Ex B) provides a discretion to notify, the objectors gave evidence at a conciliation conference and at the hearing on site and the amendments involve changes which are improvements on the original modification application.

6. There is the potential of the neighbours and objectors feeling like they have not been heard however, the Court has facilitated a conciliation conference where objectors were able to be heard on site and there have been written submissions made to the Respondent Council and those written submissions have all been provided to Court. At the hearing on site there was an opportunity to hear from objectors. The Statement of Facts and Contentions (SOFAC) filed by the Respondent on 3 February 2023 (Ex 1) sets out the contentions and at par 31(a) to (r) lists a summary of the concerns raised by objectors. The expert witnesses gave evidence as to how these concerns have been considered and addressed by the Proposed Modification.

7. The council made an application to adjourn the hearing to allow further notification as a result of one of the changes made to the modification application, namely, the pedestrian walkway that is introduced between Buildings A at the back with Building B as a result of reconfiguring the lift cores. Rather than having a single lift core in each building the Proposed Modification now seeks approval for two lift cores in the one building at the back, Building A, which will require access to those residents from Buildings A to B by way of a walkway, and it is that new walkway that the Respondent says may or may not bring forward further submissions.

8. I have read, and my attention has been drawn to a number of clauses in the Community Consultation Policy for Development Applications (Ex B). The first observation I make in relation to that consultation policy is firstly that it is a policy and it is not a statutorily binding document on the Court. The second observation I make is that the Court is now exercising the functions of the consent authority in this Class 1 appeal, and as a result, it is a discretionary guide or policy of the council before a determination is made, and strictly speaking, the Court is not bound by it.

9. Having made those observations, I have nevertheless carefully considered the description of the amendments and the drawings that are now before the Court. I am not persuaded that the amendments are adverse, in particular I am not persuaded that the pedestrian walkway is an adverse amendment. I have referred to the Joint Expert Report (JER) (Ex 2) where four experts conferred together to consider the SOFAC prepared by the Respondent (Ex 1), and as a result of that joint conference, a number of improvements were made and those improvements are not just responsive to the contentions but arguably responsive to submissions and concerns raised by the residents. The annexures or attachments to the JER have since been consolidated into a suite of drawings which is now the Proposed Modification (Ex C). The Court gave council’s experts time to satisfy themselves that the exhibit C drawings are consistent with the annexures to the joint planning report which is now exhibit 2, and the Court has been advised that they are, so there is no other change before the Court.

10. I proceeded with the hearing because of the reasons I have given above.

11. At the end of first day of the hearing the Respondent raised the only issue outstanding of concern regarding the solar access to units A103 and A203 and landscape plan deficiency regarding fire egress.

12. On the second day of the hearing, the Applicant sought to further amend the Proposed Modification by relying on a schedule of architectural plans and landscape plans, amended architectural drawings (Ex H) and amended landscape plans consisting of 5 sheets (Ex J) addressing the outstanding concerns. The Court notes that the Respondent, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the Proposed Modification and the amending documents were filed in Court on 15 August 2023.

13. The Respondent advised the Court that as a result of the amendments made to the Proposed Modification and the evidence of the expert witnesses, the contentions raised in the SOFAC are all resolved and the parties agree on the Proposed/Draft Conditions of Consent filed 15 August 2023 (Ex 5).

14. The matter was part heard and adjourned to 28 August 2023 with the following directions:

1. Applicant to file/serve updated BASIX Certificate and updated Design Verification Statement by 4 pm Monday 21 August 2023.

2. Respondent to file/serve typed notes of objector onsite evidence.

3. Matter listed for Online Court midday Tuesday 22 August 2023 for parties to advise as to compliance with these directions.

15. The directions were complied with, I marked the BASIX certificate Ex M and the
    Design Verification Statement Ex N and on 24 August 2023 the adjourned hearing date was vacated and I reserved my judgment.

16. I will now give my reasons for approving the Proposed Modification.

Is the Proposed Modification substantially the same and as the Consent? s 4.55(2) EPA Act

17. The first contention relates to satisfaction of the jurisdictional prerequisite in the terms of s 4.55(2)(a) of the EPA Act, namely, satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).

18. On 5 July 2011, the Respondent granted Development Consent No DA10/1377 for the construction of a 3 storey residential flat building complex comprising 32 apartments, 1 level of basement car parking for 64 cars and a swimming pool, subject to conditions. The Consent conditions and approved plans are in the Respondent’s bundle of documents at Tab 1 (Ex 3).

19. The experts otherwise agree that the contention is generally resolved.

20. I apply the test as set out in the statutory provision in s 4.55(2)(a) of the EPA Act (Arrage v Inner West Council [2019] NSWLEC 85, Preston CJ at [18]) and Preston CJ articulated the type of comparison required to satisfy the terms of the precondition to approving the modification of a consent as set out in s 4.55(2)(a) of the EPA Act in the decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen), where Preston CJ at [112] said as follows:

“[112] The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the “material and essential features” of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28].”

21. I conclude that I am satisfied that the Proposed Modification is substantially the same as the development for which consent was originally granted because the modification sought, following the amendments by the Applicant, is limited to the following:

1. Adjustment to the configuration of the basement carparking, reduction from 64 to 62 car spaces and the allocation of an additional four (4) disabled car parking spaces;

2. Retention of 32 units with adjusted unit layout and mix, comprising 4x1 bedroom, 17x2 bedrooms and 11x3 bedrooms;

3. Increase in the Floor Space Ratio (FSR) from 0.3:1 to 0.359:1 which remains significantly below the maximum FSR development standard prescribed in cl 4.4 of the Shoalhaven Local Environmental Plan 2014 (SLEP) of 0.8:1;

4. A redesign of common circulation space, including deletion of the Building B lift core and introduction of an additional list in Building A and a connecting walk bridge from Building A to B on Levels 2 and 3;

5. Adjustments to floor to ceiling and floor to floor heights;

6. Alterations to various services rooms, including the introduction of an additional bin store, hydraulic plant room and fire pump room and substation; and

7. Alterations to the material and finishes through the introduction of various vertical elements and a more varied colour palette, comprising terra cotta tiles, raw concrete finishes, fluted concrete, render and copper, with various glazed finishes, which mitigate the impact of the development within the natural scene.

22. The Court has considered the submissions made concerning the Proposed Modification as required by s 4.55(2)(d) of the EPA Act. The Court heard oral evidence from the expert witnesses during the hearing in relation to each of the listed concerns itemised at par 31 (a) to (r) of the SOFAC (Transcript 15 August 2023 pp 8 to 20) and the Respondent’s experts’ evidence is that they have considered the submissions and they are satisfied that the revised plans adequately address the concerns raised in those submissions.

Considerations pursuant to s 4.55(3) of the EPA Act

23. On 24 September 2012, the Respondent approved Modification Application No DS12/1101, which modified Conditions 24 a)(i) and 24 e)(i) of the Consent and imposed a new Condition 24 e)(vi). The modified and new conditions related to the upgrades to Murdoch Street carriageway required under the development consent.

24. On 13 August 2018, the Respondent approved Modification Application No DS18/1142, which sought to modify the design of the approved development by raising the level of the basement by 1.05m, reducing the roof angle and modifying the various pedestrian accesses within the development.

25. The merit assessment pursuant to s 4.55(3) of the EPA Act is made against the approved development as modified. I am satisfied that there are no outstanding merit contentions pressed by the Respondent in accordance with the written and oral evidence of the experts.

26. Consistent with the decision of Pepper J in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 at [31], as a matter of law, s 4.55 of the EPA Act constitutes a complete source of power to modify a consent, however, the Court is required to 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 (s 4.55(3), EPA Act).

27. The Applicant provided the Court with written submissions on jurisdictional matters with which the Respondent is in general agreement and made some further oral submissions recorded on the transcript. I now set out how I form the opinion of satisfaction that the relevant matters referred to in s 4.15(1) of the EPA Act have been adequately considered in order to proceed to approve the Proposed Modification.

28. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applied to all of NSW, and although the court is not assessing a development application, the parties have considered whether the Site is contaminated pursuant to s 4.6 of the Resilience and Hazards SEPP. A Preliminary Site Investigation was prepared as part of the modification application filed with the Class 1 Application (Ex A, Tab 3) which refers to a small risk of asbestos although concludes that there are no adverse environmental conditions that would impede the proposed development and future high-density residential use of the Site. In addition, the parties are satisfied that the Proposed Modification can be approved subject to condition 50A which requires a Detailed Site Investigation to be undertaken and preparation of a Remedial Action Plan.

29. A detailed compliance table has been prepared by the Applicant against the Apartment Design Guide providing commentary on how each design principle is satisfied by the Proposed Modification and the Applicant relies on the Design Verification Statement (Ex N) pursuant to the State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development. The parties are satisfied that the modification application has given adequate regard to both the design quality principles and the relevant design criteria.

30. The Proposed Modification will not exceed the 13 m maximum height of building development standard pursuant to cl 4.3 of the SLEP.

31. There is sufficient information to demonstrate that the proposed modified development remains compatible with the flood function and behaviour of the land and will not result in adverse flooding impacts as required by cl 5.21 of the SLEP. The Applicant relies on a flood impact assessment dated 31 July 2023 prepared by Anthony Barthelmess of Rienco Consulting (Ex G). The assessment concludes that the revised plans prepared for the modification application

1. do not inhibit the ability for pedestrians to evacuate the premises in a flood event;

1. meet the requirement for the habitable floor levels to be above RL +3.1m AHD;

2. enable the installation of flood gates;

3. contain a separate pedestrian access from the basement parking area to both buildings; and

4. do not change the flood function and behaviour of the land.

32. For the reasons set out in this judgment, the Proposed Modification can be approved.

Orders:

33. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA10/1377 is modified in the terms in Annexure A.

3. Development Consent No DA10/1377 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

Plans

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Decision last updated: 15 November 2023