Collaroy Street Pty Ltd v Northern Beaches Council

[2024] NSWLEC 1062

Land and Environment Court

New South Wales

Medium Neutral Citation:

Collaroy Street Pty Ltd v Northern Beaches Council [2024] NSWLEC 1062

Hearing dates:

Conciliation conference on 25 January 2024

Date of orders:

21 February 2024

Decision date:

21 February 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent DA2020/1453 is modified in the terms in Annexure A.

(3)   Development consent DA2020/1453 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Sch 9

Warringah Local Environmental Plan 2011

Cases Cited:

Collaroy Street Pty Ltd v Northern Beaches Council [2021] NSWLEC 177

Collaroy Street Pty Ltd v Northern Beaches Council [2022] NSWLEC 1448

Collaroy Street Pty Ltd v Northern Beaches Council [2023] NSWLEC 155

Texts Cited:

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

Category:

Principal judgment

Parties:

Collaroy Street Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/341557

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to a modification application (MOD2023/0613) made direct to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act).

Background

2. On 22nd December 2021 the Court granted development consent to development application DA2020/1453 (Collaroy Street Pty Ltd v Northern Beaches Council [2021] NSWLEC 177) for demolition works and the construction of a shop-top housing development with three levels of residential apartments and four ground level retail tenancies on the subject site (henceforth the consent) at Lot 1 in DP1283322, known as 4 Collaroy Street, Collaroy.

3. Subsequently, and again in response to applications under s 4.55(8) of the EPA Act, the Court has modified the consent on two occasions, essentially minor in scope: Collaroy Street Pty Ltd v Northern Beaches Council [2022] NSWLEC 1448 and Collaroy Street Pty Ltd v Northern Beaches Council [2023] NSWLEC 155.

4. MOD2023/0613 then seeks to further modify the consent.

The proposed modification

5. MOD2023/0613, as filed with the Court, seeks consent for the rationalisation of the approved window screening treatments.

6. The applicant has proposed an amendment to MOD2023/0613 pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) so as to include changes to the ground floor to accommodate services, including fire booster pumps and flood gates, removal of parking allocations and an amendment to condition 4 of the consent, so as to exclude from the operation of that condition, building identification signage approved when the Consent was granted. Northern Beaches Council, the respondent in the proceedings and local consent authority, has agreed to these amendments.

Conciliation and agreement reached between the parties

7. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conference was held on 25 January 2024. I was appointed to preside. After more time was given, the parties have advised the Court that agreement has been reached including in regard to the proposed amendments to the modification application. This agreement provides for the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the amended MOD2023/0613, in accordance with agreed conditions.

Jurisdiction

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

9. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed jurisdictional note provided to the Court on 15 February 2024. Regarding jurisdiction, and noting the advice in the parties’ jurisdictional note, I am satisfied in regard to the matters listed below.

10. Having regard to s 4.55(2) of the EPA Act:

1. Mindful of s 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. On this, I have noted the particulars of MOD2023/0613 as amended, and as outlined by the parties. At an essential level, the development application as modified would continue to provide for three levels of residential apartments and ground level retail tenancies. The building form and use would remain ‘essentially’ or ‘materially’ the same.

2. The parties advise that there has been consultation and notification as per the requirements of subss 4.55(2)(b) and (c) of the EPA Act. I am advised that no submissions were received. The requirements of s 4.55(2)(d) of the EPA Act have been met.

11. Having regard to s 4.55(3) of the EPA Act, I have taken into consideration the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. Assisting me here were the matters outlined in the parties’ jurisdictional note, which included reference to: State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Housing) 2021 (SEPP Housing), the Apartment Design Guide (ADG), and Warringah Local Environmental Plan 2011. I note, in particular regard to the quality of the design of the development, the parties advise of their agreement that the modification application satisfies the requirements of Sch 9 of SEPP Housing (concerned with design principles for apartment development) and the ADG. With respect to these instruments, mindful of North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (481 D) and subsequent decisions, there is no requirement for a jurisdictional finding of the Court in regard to such provisions.

12. Further, and again having regard to s 4.55(3) of the EPA Act, I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified (as per the judgment associated with the original Court approval, with which I was directly involved).

Conclusion

13. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

15. The Court notes that Northern Beaches Council has agreed under s 113(4) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending MOD2023/0613 filed with the Court on 27 October 2023 in accordance with the plans and reports listed below:

Document	Prepared by:	No.	Rev	Date
Site Plan	Walsh Architects	DA000	5	02/02/2024
Basement	Walsh Architects	DA002	7	02/02/2024
Ground Floor	Walsh Architects	DA003	6	02/02/2024
Level 1	Walsh Architects	DA004	6	02/02/2024
Level 2	Walsh Architects	DA005	6	02/02/2024
Level 3	Walsh Architects	DA006	7	02/02/2024
Roof Plan	Walsh Architects	DA007	5	02/02/2024
Elevations - North	Walsh Architects	DA008	6	02/02/2024
Elevations - East	Walsh Architects	DA009	6	02/02/2024
Elevations - South	Walsh Architects	DA010	6	02/02/2024
Elevations - West	Walsh Architects	DA011	5	02/02/2024
Internal Elevations	Walsh Architects	DA012	6	02/02/2024
BASIX Certificate	Eco Certificates Pty Ltd	1150877M_06	24/01/2024

Orders

16. The Court orders that:

1. The appeal is upheld.

2. Development consent DA2020/1453 is modified in the terms in Annexure A.

3. Development consent DA2020/1453 as modified by the Court is Annexure B.

P Walsh

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 21 February 2024