Pacific Leaf Investments Pty Ltd v Randwick City Council

[2023] NSWLEC 1657

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pacific Leaf Investments Pty Ltd v Randwick City Council [2023] NSWLEC 1657

Hearing dates:

Conciliation conference on 20 October 2023

Date of orders:

07 November 2023

Decision date:

07 November 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Consent is granted to Modification Application 787/2021/A, as amended during Land and Environment Court proceedings 2023/126363, for reconfiguration of basement, ground and first floor layouts, increased living areas, expanded floor plates and reallocation of car spaces at 14-16 Botany Street, Randwick, subject to the conditions of consent set out in Annexure A.

(2) As a consequence of the modification, development consent 787/2021 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 23

Land and Environment Court Act 1979, s 34

Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

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

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

Cases Cited:

Pacific Leaf Investments Pty v Randwick City Council [2022] NSWLEC 1727

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

Pacific Leaf Investments Pty Ltd (Applicant)
Randwick City Council (Respondent)

Representation:

Counsel:
M Bawden (Solicitor) (Applicant)
V McGrath (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Randwick City Council (Respondent)

File Number(s):

2023/0126363

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a development consent (DA787/2001) granted by the Court on 23 December 2022 in Pacific Leaf Investments Pty v Randwick City Council [2022] NSWLEC 1727 (the 2022 consent).

2. The 2022 consent approved the demolition of existing structures, construction of a multi-unit housing development containing six dwellings with basement parking and associated landscape works at 14-16 Botany Street, Randwick.

3. The Applicant now seeks approval for the following modifications to the development:

1. Reconfiguration of basement, ground and first floor layouts,

2. Increased living areas,

3. Expanded floor plates; and

4. The reallocation of parking spaces.

4. 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 28 June 2023. That conciliation conference was adjourned, but ultimately terminated on 4 July 2023.

5. Following the conciliation conference, the parties continued without prejudice discussions and reached in principle agreement on the basis of amended plans and additional documents. By consent, the parties sought a further conciliation conference which was held on 20 October 2023. I presided over the further conciliation conference. Following 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, as amended, subject to the annexed conditions.

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 form this state of satisfaction on the basis that:

1. The Modification Application is made by Pacific Leaf Investments Pty Ltd with the consent of the owner of the land to which the development relates in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. This provision has a number of conditions that need to be satisfied. The provision states:

4.55   Modification of consents—generally (cf previous s 96)

…

(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), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

…

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.

Is the development substantially the same: s 4.55(2)(a) of the EPA Act

3. After a comparison, I am satisfied that the 2022 consent as proposed to be modified by this Modification Application, is substantially the same development as the development for which consent was originally granted. There is no ‘radical’ change to the development. The changes to the architectural design and material do not substantially change the building footprint or massing. The number of townhouses is maintained, and the Modification Application does not make transformative changes in the building height or gross floor area. The fundamental characteristics of the development, a three-storey multi dwelling housing development of six townhouses over one level of basement car parking, remain. I find that s 4.55(2)(a) of the EPA Act is satisfied.

Consultation with concurrence authorities: s 4.55(2)(b) of the EPA Act

4. There are no conditions which have been imposed as a requirement of a concurrence to the original consent or general terms of approval, and therefore no consultation is required under s 4.55(2)(b) of the EPA Act.

Notification: s 4.55(2)(c) and s 4.55(d) of the EPA Act

5. The Modification Application was notified in accordance with the EPA Regulation and the requirements of the Randwick Development Control Plan 2013 (DCP 2013), satisfying s 4.55(2)(c) of the EPA Act. I am satisfied that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments or the imposition of conditions.

Matters at s 4.15 of the EPA Act: s 4.55(3) of the EPA Act

6. Under s 4.55(3) of the EPA Act, the consent authority must also take into consideration of two matters. Firstly, 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. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified.

7. With the assistance of the agreed jurisdictional note filed by the parties I conclude, none 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 precludes the approval of the Modification Application for the reasons set out below:

1. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 relates to the clearing of vegetation in non-rural areas. The approved development consent includes the removal of five trees which is unchanged by the Modification Application.

2. An amended BASIX certificate has been prepared addressing the modified development as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

3. Pursuant to cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, contamination and remediation was considered as part of the determination of the development application.

4. Randwick Local Environmental Plan 2012 (LEP 2012) applies. The site is zoned R3 Medium Density Residential. The Modification Application maintains the proposed use of multi dwelling housing which is permitted with consent in the R3 Medium Density Residential zone.

5. Pursuant to cl 4.3 (Height of Buildings) of LEP 2012, the site has a maximum permitted height of 9.5m. The Modification Application is compliant with this control.

6. Pursuant to cl 4.4 (Floor Space Ratio (FSR)) of LEP 2012, the site is subject to a maximum FSR control of 0.75:1. The Modification Application proposes an increase in FSR to 0.91:1. As the Modification Application is made pursuant to s 4.55(8) of the EPA Act, a written request pursuant to cl 4.6 of LEP 2012 is not required. Despite the increase, I am satisfied the 2022 consent as proposed to be modified by this Modification Application, is substantially the same development as the development for which consent was originally granted.

7. The Modification Application includes updated stormwater plans which have been coordinated with the architectural plans. I accept the agreed position of the parties that to the extent that it applies as a consideration the development as modified with continue to be consistent with the requirements of cl 6.4(3) of LEP 2012.

8. The provisions of DCP 2013 apply. In determining the Modification Application, I have considered the assessment of the development against the provisions of DCP 2013 detailed in the Statement of Environmental Effects and I am satisfied none warrant the refusal of the Modification Application.

The reasons given by the consent authority: s 4.55(3) of the EPA Act

8. Section 4.55(3) of the EPA Act requires that the consent authority must take into consideration the reasons given by the consent authority, in this instance the Court, for the grant of the consent. In determining the Modification Application, I have considered the reasons for the grant of consent within proceedings Pacific Leaf Investments Pty v Randwick City Council [2022] NSWLEC 1727.

7. 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)).

8. 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.

9. The Court notes that Randwick City Council agrees to the amendment of the Modification Application. Further, the Court notes the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in the agreed amount of $5,200.

10. The Court orders that:

1. Consent is granted to Modification Application 787/2021/A, as amended during Land and Environment Court proceedings 2023/126363, for reconfiguration of basement, ground and first floor layouts, increased living areas, expanded floor plates and reallocation of car spaces at 14-16 Botany Street, Randwick, subject to the conditions of consent set out in Annexure A.

2. As a consequence of the modification, development consent 787/2021 is subject to the consolidated, modified conditions of consent set out in Annexure B.

……………………….

D Dickson

Commissioner of the Court

Annexure A (238087, pdf)

Annexure B (422732, pdf)

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Decision last updated: 07 November 2023