Nelson Parade Pty Ltd atf Nelson Parade Property Trust v Inner West Council

[2024] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nelson Parade Pty Ltd atf Nelson Parade Property Trust v Inner West Council [2024] NSWLEC 1181

Hearing dates:

Conciliation conference on 12 April 2024

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The application is granted.

(2)   Development Consent DA/2021/0625 for the construction of a five-storey boarding house is modified in the terms set out in Annexure A.

(3)   Development Consent DA/2021/0625 as modified by the Court is set out in Annexure B.

Catchwords:

APPLICATION – an application to modify a consent granted by the Court – boarding house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 4.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

Cases Cited:

VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349

Category:

Principal judgment

Parties:

Nelson Parade Pty Ltd atf Nelson Parade Property Trust (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Adams (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/331265

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application by Nelson Parade Pty Ltd to modify a Court granted consent for the construction of a 5-storey boarding house comprising 19 rooms at 1 Nelson Place, Petersham. The original consent was granted by the Court (in Proceedings 2021/265057) on 6 July 2022 following a hearing. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (“EPA Act”). 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 [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The modification application seeks to change the internal layout of the approved building by relocating the lift core and fire stairs, reconfiguring and expanding the lower ground floor to accommodate plant room and services, and the introduction of fire and mechanical services. They are described by the parties in their Jurisdictional Statement in the following way:

“a. Lower Ground Floor

i. Reconfiguration and expansion of the lower ground floor to suit plant rooms/services to meet detailed design requirements, including:

1. Swapping the fire pump room and bulky waste rooms.

2. Addition of a water pump room.

3. Altered layout to the bicycle parking while retaining 19 spaces.

4. Revised excavation footprint with an increase in excavation overall.

ii. Introduction of a communal laundry.

b. Ground Floor

i. Relocation of the lift core from the southern to northern façade with an additional entry to the lift at street level.

ii. Deletion of the platform lift to suit above.

iii. Introduction of a self-raising flood barrier to lift landing for flood protection.

iv. Squaring off the curved wall adjacent to the lobby entry.

v. Introduction of a fire door between the hall and communal living room.

vi. Reduction in communal living room size from 65m2 to 57m2 to suit fire door.

vii. Introduction of a main switchboard/comms room.

viii. Addition of water meter location on the Nelson Street frontage.

ix. Relocation and reconfiguration of fire stairs.

x. Relocation of plant room to lower ground floor.

xi. Reconfiguration of G01 to suit other amendments.

xii. Modification to the Nelson Place discharge door to be above the flood level instead of below.

xiii. Deletion of the internal stairs and door to the car share space to remove flooding potential inside the building.

xiv. Rainwater reuse tank is provided in lieu of OSD under the communal open space decking.

xv. Reduction in wall height around hydrant booster from 1.6m to 1.29m.

c. Level 1-3

i. Reconfiguration of boarding rooms to suit the relocation of the lift core and fire stairs.

d. Level 4

i. Reconfiguration of boarding rooms to suit the relocation of the lift core and fire stairs.

ii. Room 401 window size increase.

iii. Addition of a handrail to Room 401 balcony.

iv. Increase the size of the manager’s room to comply with the minimum size for a single lodger room.

e. Roof

i. Introduction of mechanical services including condensers to the roof area, including screening.

ii. Addition of solar panels to the roof.

iii. Increase in height by 180mm to accommodate the lift overrun.

f. Other

i. Revision to the brick banding on the Trafalgar Street ground floor façade to suit other modifications.

ii. Awning introduced over the lift waiting area.

iii. The laser cut screen is replaced by a metal screen between the communal open space and motorcycle spaces.

iv. Material change of external wall from brick to precast concrete render to match the approved colour scheme.

v. General corridor amendments to suit BCA and DDA requirements.

vi. Addition of blade walls to the southern side of the windows of Rooms 105, 205, 305 and 404 in accordance with Condition 5.”

3. 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 12 April 2024. I presided over the conciliation conference.

4. 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 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 agreement follows the agreement of Inner West Council to an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. The amendments include a redesign of the lift entry area to allow it to be accessible, a change to the render finish of the podium level, the addition of a gate to the bike entrance and booster enclosure, reconfiguration of 6 of the rooms, and the provision of timber slat garage door panels.

5. The signed agreement was accompanied by a Jurisdictional Statement, which sets out a number of planning instruments that apply to the site. Based on the Jurisdictional Statement, I have considered any matters of relevance that are required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act. I have also considered the reasons given by the Court on the grant of development consent, as outlined in VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349.

6. 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 formed this state of satisfaction on the basis that the modification application merely involves changes to the design and layout of the development and the development remains for the construction of a 5-storey boarding house comprising 19 rooms, with ground level communal room and open space, a dedicated car share space as well as parking spaces for four motorcycles and 19 bicycles. As a result, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

7. The modification application was notified by the respondent between 7 and 29 December 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, no submissions were received.

8. 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 required me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. 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 development application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

10. The Court notes that:

1. Inner West 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 No DA/2021/0625/A in accordance with the documents below:

Plan name	Drawing Number	Date	Revision	Prepared by
Amended Architectural Plans
Project Cover Sheet	DA1001	05/03/2024	G	Design Inc
Lower Ground Floor	DA1100	05/03/2024	D	Design Inc
Ground Floor Plan	DA1101	05/03/2024	G	Design Inc
Level 1 Floor Plan	DA1102	05/03/2024	F	Design Inc
Level 2 Floor Plan	DA1103	05/03/2024	F	Design Inc
Level 3 Floor Plan	DA1104	05/03/2024	F	Design Inc
Level 4 Floor Plan	DA1105	05/03/2024	G	Design Inc
Roof Plan	DA1106	05/03/2024	G	Design Inc
North and West Elevation	DA2001	05/03/2024	G	Design Inc
South and East Elevation	DA2002	05/03/2024	G	Design Inc
Section A	DA3001	05/03/2024	G	Design Inc
Section B	DA3002	21/12/2023	C	Design Inc
Accessible Unit Layout – Single Bed	DA5001	21/12/2023	E	Design Inc
Accessible Unit Layout – Double Bed	DA5002	21/12/2023	B	Design Inc
GFA Calculation	DA7001	05/03/2024	G	Design Inc
Area Calculation GF & Level 1	DA7003	21/12/2023	E	Design Inc
Area Calculation Level 2 and Level 3	DA7004	21/12/2023	E	Design Inc
Area Calculation level 4	DA7005	12/09/2023	E	Design Inc
Finishes Schedule	DA7041	05/03/2024	E	Design Inc

11. The Court orders that:

1. The application is granted.

2. Development Consent DA/2021/0625 for the construction of a five-storey boarding house is modified in the terms set out in Annexure A.

3. Development Consent DA/2021/0625 as modified by the Court is set out in Annexure B.

J Gray

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 12 April 2024