East Coast Property Development Pty Ltd ATF East Coast Property development Unit Trust v Northern Beaches Council

[2024] NSWLEC 1795

Land and Environment Court

New South Wales

Medium Neutral Citation:

East Coast Property Development Pty Ltd ATF East Coast Property development Unit Trust v Northern Beaches Council [2024] NSWLEC 1795

Hearing dates:

Conciliation conference on 2 October 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The application is granted.

(2) Development consent DA2021/1805 is modified in the terms in Annexure A.

(3) Development consent DA2021/1805 as modified by the Court is Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, ss 34

Environmental Planning and Assessment Regulation 2021, s 102, 113

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

Warringah Local Environmental Plan 2011

Cases Cited:

East Coast Property Development Pty Ltd ATF East Coast Property Development Unit Trust v Northern Beaches Council [2022] NSWLEC 1305

Texts Cited:

City of Parramatta Floodplain Risk Management Policy 2014

Category:

Principal judgment

Parties:

East Coast Property Development Pty Ltd ATF East Coast Property development Unit Trust (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):

2024/234418

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of a direct application to the Court to modify development application DA2021/1805, by East Coast Property Development Pty Ltd ATF East Coast Property Development Unit Trust (the applicant). This application has been made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The consent sought to be modified is for demolition and construction of a seniors housing development incorporating 5 x 3 bedroom in-fill self-care housing units and basement car parking for 9 vehicles at 4 Alexander Street, Collaroy, legally described as Lot 1 in DP 1292665. This consent was granted by the Court on 15 June 2022, and modified by the Court on 5 June 2024.

3. The application seeks to further modify this consent in the following ways:

1. Amend condition 1 of the consent to reflect the Access Report by Jensen Hughes dated 6 June 2024.

2. Amend condition 23 of the consent in order to modify the design of the kitchens to not require compliance with the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Housing for Seniors) in relation to circulation space, cooktops and kitchen benchtops, kitchen taps, ovens and D handles.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 October 2024. I presided over the conciliation conference.

5. The only issue raised by Northern Beaches Council (the respondent) is one of insufficient information regarding the level of detail provided in the architectural plans.

6. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court approving the application and modifying the consent in accordance with the modification application.

7. As part of this agreement, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the modification application to reflect the following:

1. Deletion of condition 62 and the requirement to provide a strata management statement which is not applicable to a seniors living development.

2. Amendments to the configuration of glazed balcony sliding doors.

3. Amendments to the driveway and adjacent landscaped area to provide sufficient room for a tripod for access as per Sydney Water requirements.

4. Increased front fencing facing Alexander Street.

5. Modified angle of the blades on the ground floor blade wall.

6. Amended site description due to changes resulting from a plan of redefinition, required for the strata plan and strata subdivision pursuant to DA2021/1805.

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

9. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to modify the development consent. 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 from this I note the following points.

10. Pursuant to s 4.55(1) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. The modifications sought are predominantly for changes to the general arrangement and construction details, which are minor in nature and do not give rise to any adverse environmental consequences. The fundamental characteristics of the development are unchanged by this modification. From this I am satisfied that the development, as modified, will be substantially the same as the development for which consent was originally granted.

11. The modification application was adequately notified in accordance with the Northern Beaches Council Community Engagement Strategy from 10 to 30 July 2024, and then the application as amended was further notified between 18 October and 1 November 2024. No submissions were received during either period.

12. Based on the jurisdictional note, the documents accompanying the Class 1 application and the additional or amended documents listed in Annexure A, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development. From this, I accept that the modification does not impact compliance with the relevant parts of the SEPP Housing for Seniors or the Warringah Local Environmental Plan 2011. I further accept that the modification application does not necessitate an updated BASIX Certificate.

13. A Design Verification Statement by Paul Buljevic of PBD Architects, dated 14 November 2024, accompanies the application as required by s 102 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

14. I have also considered the reasons given for the grant of the consent that is sought to be modified, as set out in the judgment East Coast Property Development Pty Ltd ATF East Coast Property Development Unit Trust v Northern Beaches Council [2022] NSWLEC 1305.

15. For these reasons, 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 and that subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court notes :

1. The respondent, as the relevant consent authority, has agreed under section 113(4) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the Applicant amending Modification Application No. MOD2024/0371 to include the amended plans and documents described below:

1. Architectural Plans prepared by PBD Architects:

Drawing No.	Drawing Title	Issue	Date
DA002	Site Plan	E	19/08/2024
DA100	Ground Floor Plan	J	08/10/2024
DA101	Level 1 Plan	H	19/08/2024
DA110	Unit 1.01 & G.01 Accessibility	A	19/08/2024
DA111	Unit 1.02 Accessibility	A	19/08/2024
DA112	Unit 1.03 Accessibility	A	19/08/2024
DA113	Unit 2.01 Accessibility	A	19/08/2024
DA200	Elevations 01	F	08/10/2024
DA201	Elevations 02	G	08/10/2024
DA202	Southern Boundary Interface	E	19/08/2024
DA300	Section A and B	G	08/10/2024
DA301	Boundary Condition Study	D	19/08/2024
DA901	Additional Details Sheet	A	08/10/2024
DA902	Additional Details Sheet	A	08/10/2024

2. Access Report prepared by Jensen Hughes, dated 23 August 2024;

3. Statement of Environmental Effects, prepared by Boston Blyth Flemming, dated 8 October 2024.

4. Design Verification Statement prepared by Paul Buljevic of PBD Architects, dated 14 November 2024.

17. The Court orders:

1. The application is granted.

2. Development consent DA2021/1805 is modified in the terms in Annexure A.

3. Development consent DA2021/1805 as modified by the Court is Annexure B.

……………………….

E Washington

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 11 December 2024