Group Architects Pty Ltd v Woollahra Municipal Council

[2023] NSWLEC 1277

Land and Environment Court

New South Wales

Medium Neutral Citation:

Group Architects Pty Ltd v Woollahra Municipal Council [2023] NSWLEC 1277

Hearing dates:

Conciliation conference held on 15 May 2023

Date of orders:

06 June 2023

Decision date:

06 June 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The modification application is approved.

(2)   Development Consent No. DA399/2021 is modified in the terms in Annexure A.

(3)   As a consequence of Order (2), Development Consent No. DA399/2021 is subject to the consolidated, modified conditions of consent set out in 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

Environmental Planning and Assessment Regulation 2021, s 113
Land and Environment Court Act 1979, s 34

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Group Architects Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1217

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Category:

Principal judgment

Parties:

Group Architects Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

G Hartley (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2022/366438

Publication restriction:

No

Judgment

1. COMMISSIONER: This modification application (referenced as DA399/2021/2) is made pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The application is made direct to the Land and Environment Court and seeks to modify Development Consent DA399/2021 granted by the Court in proceedings 2021/364653 (Group Architects Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1217 (henceforth Group Architects Pty Ltd 1)) for demolition of the existing dwelling and construction of a three-storey residential flat building at 18 Boronia Road, Bellevue Hill (site). The grant of consent to DA399/2021 related to a series of plans outlining the proposal and was subject to conditions.

3. It is noteworthy that this modification application has been subject to amendments. In turn I note that:

1. Woollahra Municipal Council as the relevant consent authority has agreed, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the modification application in accordance with the following documents:

1. Architectural plans, all prepared by Group Architects Pty Ltd

Drawing No.	Issue	Drawing Name	Date
GA2021-027-A100	7	SITE PLAN AND ROOF	09.03.2023
GA2021-027-A101	7	GARAGE AND GROUND FLOOR PLANS	09.03.2023
GA2021-027-A102	7	FIRST FLOOR AND SECOND FLOOR PLANS	09.03.2023
GA2021-027-A200	7	ELEVATIONS	09.03.2023
GA2021-027-A201	7	ELEVATIONS	09.03.2023
GA2021-027-A300	7	SECTIONS	09.03.2023

2. Structural report prepared by ABC Consultants Pty Ltd, undated.

3. Fire Sprinkler Design Report prepared by Decode Fire Consulting, dated 21 February 2023

4. Planning response prepared by GSA Planning, dated 23 March 2023

5. BASIX Certificate Number 1230437M_02, dated 3 May 2023

6. NCC Section J Energy Efficiency Assessment prepared by Energy Lab, dated 1 May 2023.

2. The Applicant filed the, now amended, modification with the Court on 3 May 2023.

4. The modification application, as now amended, seeks certain modifications to approved plans and conditions. In an agreed statement of jurisdictional requirements received 15 May 2023 (jurisdictional statement), the parties have summarised the proposed modifications as follows:

“Garage Floor

• Reconfiguration to accommodate new pump room and relocation of bicycle spaces, bin and storage area

• Minor adjustment to ramp to provide access to pump room

• Additional excavation to accommodate relocated bin and storage area

Ground Floor

• Provision of fire brigade booster in front planter box

• Enclosure of Unit 1 balconies to the north west and north east

• Excavation at rear to accommodate fire sprinkler tank, storage area, media/gym room, laundry and stairs which will form the lower level of Unit 3

First Floor

• Enclosure of Unit 4 north western balcony

• Enclosure of small north eastern terrace of Unit 3 adjacent to living room

Internal reconfiguration of Unit 3

• Reorientation of approved swimming pool

Second Floor

• Enclosure of Unit 2 north western balcony

• Enclosure of small terrace adjacent master bedroom

Internal reconfiguration

Roof Level

• Minor roof extension to reflect wall extension to Unit 3”

Agreement between the parties

5. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 May 2023, and at which I presided. Soon after the conciliation conference the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. By way of the jurisdictional statement, the parties outlined matters of jurisdictional relevance in these proceedings and explained how they have been or could be satisfied.

Jurisdiction

8. In regard to jurisdiction and mindful of the parties’ note, I find as follows:

1. Having regard to s 4.55(2)(a) of the EPA Act, I agree with the expressed view of the parties in the jurisdictional statement and am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. The proposed changes (summarised at [3]) are alterations without radical transformation. As modified, the development would essentially, and materially, have the same essence as that originally approved (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]).

2. Having regard to subss 4.55(2)(b) and (c) of the EPA Act, I accept the advice of the parties that the required notification and consultation has occurred.

3. The test at s 4.55(2)(d) of the EPA Act is that consideration must be given to submissions. A copy of the single objecting submission has been provided to me and I have considered it.

4. Having regard to s 4.55(3) of the EPA Act and with the assistance of the jurisdictional statement of the parties which provided detailed particulars, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EPA Act. I note here the different test applicable when compared to the evaluation of a development application, mindful of North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 (at 481C). That is that s 4.55 of the EPA Act operates according to its own terms, with for example, requirements of planning instruments, per se, matters for consideration under s 4.55(3) of the EPA Act, rather than providing for jurisdictional bars.

5. Section 4.55(3) of the EPA Act also requires me to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. In this instance, the grant of consent to DA399/2021 was made by the Court. I have considered the reasoning provided in my judgement in relation to that matter (Group Architects Pty Ltd 1).

Conclusion

9. 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. In turn, I am required under related provisions to dispose of the proceedings in accordance with the parties’ decision. In accordance with these legal provisions, the Court’s functions do not include the consideration of the overall merits of the proposal in this instance.

Orders

10. The Court orders that:

1. The modification application is approved.

2. Development Consent No. DA399/2021 is modified in the terms in Annexure A.

3. As a consequence of Order (2), Development Consent No. DA399/2021 is subject to the consolidated, modified conditions of consent set out in Annexure B.

P Walsh

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 06 June 2023