Drumalbyn B Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1291

Land and Environment Court

New South Wales

Medium Neutral Citation:

Drumalbyn B Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1291

Hearing dates:

Conciliation conferences on 30 April 2024 and 15 May 2024

Date of orders:

04 June 2024

Decision date:

04 June 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The modification application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

(2) Development consent DA416/2021/1 granted by the Land and Environment Court on 11 January 2023 is modified in the terms listed in Annexure A.

(3) Development consent DA416/2021/1 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – seniors living - 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, ss 102, 113

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, s 147
State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2
Woollahra Local Environmental Plan 2014, cll 4.3, 4.4, 5.10, 6.2, 6.9

Cases Cited:

RNB Property Group Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1012

Category:

Principal judgment

Parties:

Drumalbyn B Pty Ltd (ACN 650 903 423) (First Applicant)
Drumalbyn R Pty Ltd (ACN 650 902 677) (Second Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicants)
J.P Merlino (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/424378

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court development consent (RNB Property Group Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1012) (RNB Property Group). The modification application (2021/416/3) was filed with the Court on 23 November 2023. The proposed modifications to the original consent (2021/416/1) as filed to the Court are summarised as follows (as described in the filed Statement of Facts and Contentions):

• Internal reconfiguration of Unit 7 within Building B;

• Infill of the north-western portion of the approved terrace to Unit 7 to provide additional internal floor area;

• New north-eastern Juliet balcony adjoining the proposed living area of Unit 7; and

• New pathway from the proposed new Unit 7 kitchen location to the retained and refurbished landscaped open space area at the rear of the site.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 April 2024. I presided over the conciliation conference and subsequent conference on 15 May 2024.

3. 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 approving the modification application and modifying the development consent.

4. The Court notes that Woollahra Municipal Council, as the relevant consent authority, has agreed pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the Applicant amending the subject modification application 2021/416/3 to rely upon the amended architectural plans and supporting information (amended application) listed as follows:

Reference	Description	Author	Date(s)	Rev
S4.56 112	Building B / Level 3	SRH Architecture	3/05/2024	A
S4.56 113	Building B / Roof Plan			A
S4.56 200	Elevation – Building A / North West			A
S4.56 204	Elevation – Building B / North East			A
S4.56 205	Elevation – Building B / South West			A
S4.56 300	Sections – Building A + Building B / Long Section			A
S4.56 302	Sections – Building B / Short Section	A
A1747210	BASIX Certificate	NSW Department of Planning and Environment	13/05/2024

5. The changes between the as filed modification application and the amended application primarily result in a reduction of the proposed expansion of Unit 7.

6. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

8. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

9. 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 and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, I am 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. This is set out below.

10. I am satisfied that owners consent accompanied the modification application.

11. I have considered the documentation within the amended application and the parties’ agreed detailed jurisdictional statement at [6] – [16]. I accept that the proposed modifications to the approved seniors living development, primarily being the reconfiguration and increased size of Unit 7, will be substantially the same as the original development (s 4.55(2)(a) of the EPA Act).

12. With respect to s 4.55(2)(b), (c) and (d) of the EPA Act, the modification application was notified between 24 January 2024 and 8 February 2024. Nine unique objections were received. At the s 34 conciliation conference, one objector (through their representative) orally explained their objections from their property. The parties have advised the Court that the issues raised from the objections have been considered. I accept the parties’ agreement that these provisions have been met.

13. With respect to s 4.55(3) of the EPA Act and the reasons for granting consent, in reviewing the parties’ jurisdictional statement and RNB Property Group, the amended application for an increase in size of Unit 7 with associated works does not offend the reasons for the grant of consent.

14. Further, I accept that the parties have adequately considered s 4.15(1) of the EPA Act as set out in the agreed jurisdictional statement, Statement of Environmental Effects prepared by GSA Planning dated 13 November 2023 (as filed) and 9 May 2024 (further amended) and documentation accompanying the modification application (including the amended application). The following is acknowledged:

1. In the original approval, Building B was approved at 8.99m and complied with cl 4.3 height of buildings of the Woollahra Local Environmental Plan 2014 (WLEP). Building B as modified is 9.92m, above the 9.5m permitted by cl 4.3. I accept the parties’ agreement that the additional increase in height is consistent with the objectives of the development standard and zone in this instance.

2. The parties agree that the proposed increase in gross floor area from 1536m² to 1595.01m² meets the objectives of cl 4.4 floor space ratio of the WLEP, as the additional bulk will not overshadow adjoining properties, does not create privacy concerns and does not block any views.

3. The amended application was supported by a Heritage Impact Assessment prepared by Zoltan Kovacs Architect dated 2 November 2023 (HIS). I accept that cl 5.10 of the WLEP has been considered by the parties’ heritage experts.

4. The parties agree that the modifications do not result in further earthworks or tree removal (cll 6.2 and 6.9 of WLEP).

5. Pursuant to s 4.2, State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable SEPP) does not apply to the amended application. The Sustainable SEPP also repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, effective from 1 October 2023. Notwithstanding, the amended application is accompanied by a BASIX Certificate (A1747210).

6. The amended application is accompanied by an amended Design Statement by a qualified registered architect (Mr Hanson, registration number 6739) as required by s 102 of the EPA Reg that addresses s 147 of State Environmental Planning Policy (Housing) 2021.

15. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal, amended application, and supported by the jurisdictional statement.

Conclusion

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

18. 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.

Orders:

19. The Court orders:

1. The modification application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

2. Development consent DA416/2021/1 granted by the Land and Environment Court on 11 January 2023 is modified in the terms listed in Annexure A.

3. Development consent DA416/2021/1 as modified by the Court is Annexure B.

……………………….

S Porter

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 04 June 2024