MHN Design Union Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1583

Hearing dates:

Conciliation conference on 10 September 2024

Date of orders:

24 September 2024

Decision date:

24 September 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The modification application is approved.

(2)   Development consent DA237/2023/1 for the demolition of a dwelling house and construction of a three level residential flat building with basement parking and landscaping, at 43 Salisbury Road, Rose Bay granted by the Land and Environment Court on 24 April 2024 is modified in the terms in Annexure A.

(3)   Development consent DA237/2023/1 as modified by the Court is Annexure B.

Catchwords:

APPLICATION – modification application made directly to the Court – residential flat building – conciliation conference – agreement reached – orders made

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 100, 109, 113

Cases Cited:

MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1213

Category:

Principal judgment

Parties:

MHN Design Union Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
D Havadjia (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/227401

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application by MHN Design Union Pty Ltd to modify a Court granted consent for the construction of a 3 unit residential flat building over basement parking on land being 43 Salisbury Road, Rose Bay. The original consent was granted by the Court on 24 April 2024 in MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1213 as a result of a conciliated agreement. The modification application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), and seeks internal and external changes at all habitable levels to improve resident amenity. The Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 10 September 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 11 September 2024, following the Council’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The modification application, as amended, seeks changes to the conditions to allow the staging of construction certificates, as well as the changes to the layout of the habitable levels including relocation of the powder room and laundry, reconfiguration of select bedrooms, increased lobby size, and the extension of living areas by moving the glazing lines and reducing balcony sizes.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites. Based on the Agreed Statement, the Statement of Environmental Effects dated 13 June 2024, the Addendum Statement of Environmental Effects dated 13 August 2024 and the documents that accompany the Class 1 Application, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

5. As the presiding Commissioner, 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. I reach this conclusion because the modifications maintain the existing building envelope and landscaped street presentation, with changes to the gross floor area arising only by virtue of changes to the glazing lines. The amendments therefore only relate to matters of detail, and do not change the character of the development or the apartment yield. The fundamental characteristics and essence of the development remain unchanged by the proposed modification.

6. The development consent is for integrated development and the modification application was referred to the concurrence authority, Water NSW, as required by s 109(2) of the EPA Regulation 2021 and consistent with s 4.55(2)(b) of the EPA Act. Water NSW provided a response on 16 August 2024, indicating that it has no further comments in relation to the modification application.

7. The modification application was notified by the respondent between 24 July 2024 and 8 August 2024 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one submission was received. I have considered the issues raised in that submission.

8. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 13 June 2024.

9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. 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 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.

11. The Court notes:

1. The Court notes that the Respondent approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the modification application (DA237/2023/2) to rely on the following documents:

1. Owner’s Consent Letter dated 19 April 2024; and

2. Statement of Environmental Effects Addendum dated 13 August 2024.

12. The Court orders that:

1. The modification application is approved.

2. Development consent DA237/2023/1 for the demolition of a dwelling house and construction of a three level residential flat building with basement parking and landscaping, at 43 Salisbury Road, Rose Bay granted by the Land and Environment Court on 24 April 2024 is modified in the terms in Annexure A.

3. Development consent DA237/2023/1 as modified by the Court is Annexure B.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 24 September 2024