Futurehouse Pty Ltd atf Futurehouse Trust v Newcastle City Council

[2024] NSWLEC 1554

Land and Environment Court

New South Wales

Medium Neutral Citation:

Futurehouse Pty Ltd atf Futurehouse Trust v Newcastle City Council [2024] NSWLEC 1554

Hearing dates:

Conciliation conferences held on 15 and 16 July 2024

Date of orders:

10 September 2024

Decision date:

10 September 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Consent DA2015/0878 is modified in the terms in Annexure A.

(3)   Development Consent DA2015/0878 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification application – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021, s 113

Newcastle Local Environmental Plan 2012, cll 2.3, 2.7, 4.1, 4.1AA, 4.3, 4,4, 4,5, 5.10, 6.1, 6.2

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.11, 4.6

State Environmental Planning Policy No 55–Remediation of Land

Texts Cited:

City of Newcastle Community Participation Plan 2019

Newcastle Development Control Plan 2012

Category:

Principal judgment

Parties:

Futurehouse Pty Ltd atf Futurehouse Trust (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
P Holt (Solicitor) (Applicant)
A Sinclair (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/79920

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns Modification Application MA2023/00420 (the Modification Application) to modify a Development Consent (DA2015/0878) (the Development Consent) for the erection of two attached three storey dwellings, associated retaining walls, site works and one lot into two lot subdivision at Lot 202 DP 1116291 known as 20A Hillview Crescent, The Hill, NSW, 2300 (the site).

2. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the refusal of the Modification Application by Newcastle City Council (the Respondent). 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 [34] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The Development Consent was granted by Council on 5 May 2016. The parties advise that the Development Consent has been previously modified as follows:

1. On 19 June 2019, resulting in a change to the consent conditions (DA2015/0878.01);

2. On 15 April 2020, resulting in changes to floor levels (DA2015/0878.02); and

3. On 9 December 2020, resulting in changes to floor heights and pitching of roofs (DA2015/0878.03).

4. A Class 1 Appeal Application was lodged with the Court on 1 March 2024 against the Respondent’s refusal of the Modification Application.

5. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 28 March 2024.

6. On 5 July 2024, the Applicant provided amended plans and materials to the Respondent for its consideration. The Respondent as the relevant consent authority, under s 113 of the Environmental Planning and Assessment Regulation 2021, agreed to the Applicant amending the Modification Application in accordance with the documents provided on 5 July 2024

7. The Court arranged a conciliation conference for the Modification Application under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 and 16 July 2024. I presided over the conciliation conference, which commenced with an onsite view, attended by four submitters who made verbal submissions. One additional written submission was provided at the on-site view.

8. Over the course of the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties.

9. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and approving the Modification Application, subject to conditions.

10. The Applicant agreed to further amend the plans for the proposed development in response to matters raised by Council and the submitters at the on-site view, and these further amended plans form part of the s 34 agreement. A final agreement under s 34(3) of the LEC Act was filed on 15 July 2024 and the further amended plans were filed on 16 July 2024. The agreement is supported by an agreed jurisdictional statement.

11. 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. 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.

12. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act. This decision involved the Court upholding the appeal and granting the Modification Application.

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional prerequisites

Environmental Planning and Assessment Act 1979

Substantially the Same Development

14. Section 4.55(2)(a) of the EPA Act Modification of consents states:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied 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) …

15. The parties submit, and I accept that, the development to which the Modification Application relates is substantially the same as that in the Development Consent as follows:

1. the site footprint is predominantly the same, dictated by the already constructed slabs for both Units 1 and 2;

2. the bulk and scale of the building remains similar, with an adjustment of elements of the originally approved building envelope to provide for improved amenity, privacy, energy efficiency, and layout;

3. a one-lot into two-lot subdivision is proposed with one dwelling on each lot; and

4. north facing balconies, vehicle access, and dwelling presentation to the street.

16. The proposed changes in the Modification Application relate to minor amendments to setbacks, floor space ratio (FSR) and height of the proposed dwellings; improvements in the dwelling layouts; and minor changes to the internal floor plans and facades of each dwelling. The amended plans and materials submitted by the Applicant to the Respondent on 5 July 2024 (and as subsequently amended on 15 July 2024) further address the concerns raised by the objectors in their submissions to the Respondent, and as made to the Court at the s 34 conciliation conference on site.

17. 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, for the reasons that the modifications to the built form are minor, there is no change to the proposed use or generally to the external appearance of the approved building, and the development will be of the same height, and similar bulk and scale and have the same number of residential units.

Public Notification

18. The Modification Application was notified between 23 November 2023 and 7 December 2023 in accordance with the City of Newcastle Community Participation Plan 2019. Five submissions were received raising concerns about the proposed modification to the Development Consent.

19. The Respondent advised that it provided the amended Modification Application lodged on 5 July 2024 to those submitters for their review and submissions, and that the submissions from residents, including their submissions in respect of the amended Modification Application, have been considered in the Respondent’s merit assessment of the Modification Application.

Owner’s consent

20. The Modification Application was made with the consent of the owner of the site.

21. The parties advise that the Modification Application does not rely on or incorporate any existing structures (including retaining walls), which are located partially or fully on adjoining land. Additionally, no new works the subject of this Modification Application are proposed on adjoining land.

22. Conditions of consent 2A and 46A have been imposed on Development Consent DA2015/0878 by this Modification of the Development Consent to ensure that all new development work is to be entirely within the bounds of the site.

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

23. The amended Modification Application was accompanied by a BASIX Certificate No BSX-25212M_02 prepared by Certified Energy 1 dated 10 July 2024 in compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. The Development Application DA2015/0878 (the DA) was lodged and assessed under the provisions of State Environmental Planning Policy No 55 – Remediation of Land, which has been repealed and its provisions transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP); and

1. The parties advise that the site's contamination profile was considered during the assessment of the DA, when the consent authority was satisfied that the site could continue to be used for residential purposes; and

2. The parties submit that the Court can be satisfied that the site is suitable for the proposed residential use in accordance with s 4.6 of the Resilience and Hazards SEPP.

25. The DA was similarly lodged and assessed under the provisions of State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP).

26. The parties advise that the site’s location within the Coastal Use Area was considered during the assessment of the Development Application, when the Respondent was satisfied the proposed development was acceptable. The provisions of the Coastal SEPP have also been transferred to Resilience and Hazards SEPP. Section 2.11 of the Resilience and Hazards SEPP states that development consent must not be granted within the Coastal Use Area, unless the consent authority has considered the impacts of the proposed development and is satisfied that it necessarily avoids any adverse impacts with any unavoidable impacts adequately minimised or mitigated in regard to the following at s 2.11(1)(a):

1. existing safe access to and from the beach, headland or rock platform;

2. overshadowing and wind funnelling and loss of views to foreshores;

3. visual amenity and scenic quality of coastal areas; and

4. Aboriginal cultural heritage and the built environment.

27. The consent authority must also take into account the surrounding coastal and built environment, and the bulk and scale of the proposed development under s 2.11(1)(c) of the Resilience and Hazards SEPP.

28. The parties submit that the Court can be satisfied that the proposed development in the Modification Application remains suitably sited and designed to avoid or mitigate any adverse impacts on the site and that the Respondent has taken into account the surrounding coastal and built environment in respect of the proposed development.

Newcastle Local Environmental Plan 2012

29. The Newcastle Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site; and

1. The Respondent advises that it has taken into consideration the provisions of the LEP (cll 2.3, 2.7, 4.1, 4.1AA, 4.3, 4.4, 4.5, 5.10) in its jurisdictional and merit assessment of the Modification Application;

2. Clause 6.1 of the LEP relates to Acid Sulfate Soils. The site is within a Class 5 area as marked on the LEP maps; and

1. The parties submit that the works subject to the Modification Application are not likely to lower the water table below 1.0m AHD on any land within 500m of a Class 1, 2 and 3 land classifications, pursuant to cl 6.1 of the LEP;

3. Clause 6.2 of the LEP relates to Earthworks; and

1. The parties advise that to the extent that modified earthworks are proposed consideration has been given to the matters identified in cl 6.2(3) of the LEP as part of the Council’s assessment of the Applicant’s Modification Application;

2. Appropriate conditions of consent are proposed to mitigate any potential impacts that may arise in respect of earthworks proposed; and

3. Geotechnical Report Revision 1 prepared by Hunter Civilab dated 20 May 2024 supports the proposed earthworks.

Newcastle Development Control Plan 2012

30. The Newcastle Development Plan 2012 (the DCP) applies to the site. The Respondent advises that it has taken into consideration the provisions of the DCP in its jurisdictional and merit assessment of the Modification Application, and that the DCP does not impose any jurisdictional requirements on the approval of the Modification Application.

Conclusion and orders

31. As the parties’ decision is within the Court’s power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

32. 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 amended 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.

33. The Court notes that:

1. Newcastle City Council, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application MA2023/00420 on 15 July 2024 in accordance with the amended architectural plans and documents below:

Drawing	Dated
Architectural Plans prepared by Urban Villager
1. Title Sheet DA00 Rev 17	5/07/2024
2. Site Analysis and Site Plan DA01 Rev 15	15/07/2024
3. Existing Site/Demolition Plan DA02 Rev 15	15/07/2024
4. Subdivision Plan DA11 Rev 08	8/05/2024
5. General Arrangement Plans DA20 Rev 20	5/07/2024
6. General Arrangement Plans DA21 Rev 17	5/07/2024
7. Roof Plan DA22 Rev 15	5/07/2024
8. Elevations DA30 Rev 18	5/07/2024
9. Elevations DA31 Rev 18	5/07/2024
10. Sections DA32 Rev 19	5/07/2024
11. Sections DA33 Rev 05	5/07/2024
12. Window Schedule DA40 Rev 06	5/07/2024
Landscape Plans prepared by Full Potential Landscapes
Amended Concept Design Plan Rev 1	1/07/2024
Other Documents
BASIX Certificate No. BSX-25212M_02 prepared by Certified Energy 1	10 July 2024
Geotechnical Investigation Report (Rev 1) prepared by Hunter Civilab	20 May 2024
Structural Engineering Report (Rev 0) prepared by VEA	28 June 2024

2. The amended Modification Application plans were filed with the Court on 16 July 2024.

34. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA2015/0878 is modified in the terms in Annexure A.

3. Development Consent DA2015/0878 as modified by the Court is Annexure B.

G Kullen

Acting Commissioner of the Court

79920.24 Annexure A

79920.24 Annexure B

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Decision last updated: 10 September 2024