JS Development NSW Pty Ltd v Penrith City Council

[2019] NSWLEC 1525

Land and Environment Court

New South Wales

Medium Neutral Citation:	JS Development NSW Pty Ltd v Penrith City Council [2019] NSWLEC 1525
Hearing dates:	Conciliation conference on 22 August 2019
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure “A” hereto. (2) The Applicant is to pay the Respondent’s costs in the sum of $5,000 within 14 days. (3) The appeal is upheld. (4) Modification Application DA16/0255.03 for the modification of development consent 155751/2016, which applies to land at 42-44 Lethbridge Street, Penrith, is approved subject to the conditions contained in Annexure “A” hereto.
Catchwords:	MODIFICATION APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	J S Development NSW Pty Ltd v Penrith City Council [2017] NSWLEC 1160
Texts Cited:	Apartment Design Guide Penrith Development Control Plan 2014
Category:	Principal judgment
Parties:	JS Development NSW Pty Ltd (Applicant) Penrith City Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/385406
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by JS Development NSW Pty Ltd (the Applicant) lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Penrith City Council (the Council) of a modification application, DA16/0255.03, for the modification of development consent 155751/2016 (the modification application) pursuant to s 4.56 of the EPA Act.

2. The modification application proposed alterations to an approved residential flat building (RFB) located at 42-44 Lethbridge Street, Penrith (the site).

3. The RFB was granted consent by the Land and Environment Court on 28 March 2017 in proceedings having been the subject of an agreement pursuant to s 34 of the Land and Environmental Court Act 1979 (the LEC Act): J S Development NSW Pty Ltd v Penrith City Council [2017] NSWLEC 1160.

4. The consent authorises the construction of a 6 storey RFB containing 55 apartments over basement parking. The approved RFB comprised 2 elements, known as Buildings A and B, separated by communal open space (COS) at the first floor level. The development exceeded the height limit permissible under the Penrith Local Environmental Plan 2010 (the LEP) but had been supported by the upholding of a cl 4.6 written request, as is required by the LEP.

5. Minor modifications to the consent were granted by the Council pursuant to s 4.56 in March 2018.

6. The modification application the subject of the appeal proposed to increase the number of apartments to 60, increase the amount of parking provided, and relocate the approved COS from the first level to the third level, effectively accommodating the additional apartments in the area between Buildings A and B on levels 1 and 2. Other more minor modifications were also proposed.

7. The Council contended that the modified development would not meet the objectives of the R4 High Density zone in which the site is situated under the provisions of the LEP as a high level of amenity would not be maintained. The bulk, scale and length now proposed were also of concern particularly given the height breach that had been supported in granting consent was, in part, due to the separating of the built form above the first level, now proposed to be ‘infilled’ to the third level. The roof height was also to be increased by a change in the roof design.

8. The Council also considered that the modified development would not meet the design requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) or the associated Apartment Design Guide. There would be unacceptable amenity impacts for future residents and on neighbouring properties.

9. There would also be non-compliances with the setback provisions of the Penrith Development Control Plan 2014, and the amount and useability of the redesigned COS was considered unacceptable.

10. The Court arranged a conciliation conference under s 34 of the LEC Act. I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act and therefore I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties’ decision.

12. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

13. The parties provided written advice on the jurisdictional matters to be considered as well as a statement of reasons for coming to an agreement.

14. It is appropriate to briefly summarise those reasons in terms of how the contentions were resolved. In essence, the plans accompanying the application were amended, with the leave of the Court, in May 2019 and addressed a number of the Council contentions. During conciliation, further contentions and concerns were resolved with further amendments to the modification application including by: reducing the number of infill levels between Buildings A and B from three levels to two; increasing the setback and redesigning a number of balconies to increase privacy and reduce bulk; and improving apartment layouts to address amenity concerns.

15. The Court has the power to modify the Court consent under s 4.55(8) of the EPA Act and the relevant matters at s 4.15(1) of the EPA Act as are of relevance have been considered. In particular, the zone objectives of the LEP are now met, and consent has already been granted to the LEP height breach under the existing consent.

16. A Design Verification Statement has been provided by the Applicant’s architect as is required under the Environmental Planning and Assessment Regulation 2000 and SEPP 65, and conditions of consent require compliance with this Statement.

17. I am also satisfied that the modification application, as amended during conciliation, would result in a development that is substantially the same development as the development for which consent was originally granted and before that consent was subsequently modified as required under s 4.56(1)(a) of the EPA Act. Further, that the modification application was notified as required by s 4.56(1)(b) but no objections were received.

18. The Applicant has provided an updated BASIX certificate as is required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and conditions of consent require compliance with this updated certificate.

19. Accordingly, the Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure “A” hereto.

2. The Applicant is to pay the Respondent’s costs in the sum of $5,000 within 14 days.

3. The appeal is upheld.

4. Modification Application DA16/0255.03 for the modification of development consent 155751/2016, which applies to land at 42-44 Lethbridge Street, Penrith, is approved subject to the conditions contained in Annexure “A” hereto.

…………………………

Jenny Smithson

Commissioner of the Court

Annexure A (184 KB, pdf)

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