Primus DMS Pty Ltd v Bayside Council

[2024] NSWLEC 1272

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Primus DMS Pty Ltd v Bayside Council [2024] NSWLEC 1272

Hearing dates:

Conciliation conference on 2 May 2024

Date of orders:

28 May 2024

Decision date:

28 May 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent DA-2017/1243 is modified in the terms at Annexure A.

(3) Development Consent DA-2017/1243 as modified by the Court is at Annexure B.

Catchwords:

MODIFICATION APPLICATION – shop top housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

Land and Environment Court Act 1979, s 34

Bayside Local Environmental Plan 2021, cll 4.3, 6.9

Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113

State Environmental Planning Policy (Housing) 2021, ss 146, 147

Cases Cited:

Happy 2 Pty Ltd v Bayside Council [2020] NSWLEC 1000

Category:

Principal judgment

Parties:

Primus DMS Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/120399

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against the deemed refusal of modification application MDA No. 2022/141 at 1637, 1639 and 1647 Botany Road, Botany (the site). The proposed modifications to the original consent (DA/2017/1243) as filed to the Court are summarised as follows:

• Reconfiguration of basement levels one and two;

• Reconfiguration of the ground floor including changes to the approved commercial tenancies, additional services, introduction of office premises, changes to the substation infrastructure and associated works, realignment of the pedestrian through link, suspended OSD tank and changes to waste management;

• Design changes to the above residential levels, including decreased building separation and internal apartment reconfiguration;

• Increase in height from RL21.43 to RL 23.24;

• Changes in colours and materials.

2. The matter was set down for hearing on 2 and 3 May 2024. At the commencement of the hearing, the parties requested a s 34 conciliation conference as they had reached agreement. The Court granted the request and arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) on 2 May 2024. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 for the modification application and modifying the development consent.

4. The Court notes that Bayside Council, as the relevant consent authority, has agreed pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the Applicant amending modification application MDA No. 2022/141 to rely upon the amended architectural plans and supporting information (amended application) listed as follows:

Drawing No / Plan	Author	Dated
S4.56 100 BB / Basement 01	PBD Architects	25 January 2024
S4.56 101 BB / Ground Floor	PBD Architects	25 January 2024
S4.56 102 BB / Level 1	PBD Architects	25 January 2024
S4.56 103 BB / Level 2	PBD Architects	25 January 2024
S4.56 104 BB / Level 3	PBD Architects	25 January 2024
S4.56 105 BB / Level 4	PBD Architects	25 January 2024
S4.56 106 BB / Site/Roof Plan	PBD Architects	25 January 2024
S4.56 201 BB / Elevation Sheet 1	PBD Architects	25 January 2024
S4.56 203 BB / Elevation Sheet 3	PBD Architects	25 January 2024
S4.56 202 BB / Elevation Sheet 2	PBD Architects	25 January 2024
S4.56 204 BB / Elevation Sheet 4	PBD Architects	25 January 2024
S4.56 305 AA / Internal Elevation Sheet 1	PBD Architects	1 May 2024
S4.56 306 AA / Internal Elevation Sheet B	PBD Architects	1 May 2024
S4.56 301 BB / Section A	PBD Architects	25 January 2024
S4.56 302 BB / Section B	PBD Architects	25 January 2024
S4.56 303 BB / Section C	PBD Architects	25 January 2024
Annotated Elevations / Annotated 3D Views	PBD Architects
S4.56 400 BB / Schedule of Finishes and Materials	PBD Architects	25 January 2024
S01-SW201 Rev B / Erosion & Sediment Control Plan & Details	S&G Consultants Pty Ltd	17 January 2024
S01-SW301 Rev B / General Arrangement Basement 1 Plan	S&G Consultants Pty Ltd	17 January 2024
S01-SW302 Rev B / General Arrangement Ground Floor Plan	S&G Consultants Pty Ltd	17 January 2024
S01-SW303 Rev B / General Arrangement Road Drainage	S&G Consultants Pty Ltd	17 January 2024
S01-SW304 Rev B / General Arrangement Level 1 Plan	S&G Consultants Pty Ltd	17 January 2024
S01-SW305 Rev B / General Arrangement Roof Plan	S&G Consultants Pty Ltd	17 January 2024
S01-SW401 Rev B / Detail Sheet 1 of 3	S&G Consultants Pty Ltd	17 January 2024
S01-SW402 Rev B / Detail Sheet 2 of 3	S&G Consultants Pty Ltd	17 January 2024
S01-SW403 Rev A / Detail Sheet 3 of 3	S&G Consultants Pty Ltd	10 November 2023
S01-SW501 Rev B / MUSIC Catchment Plan, Model & Result	S&G Consultants Pty Ltd	17 January 2024
100 Issue A / Landscape Composite Plan	Site Image Landscape Architects	8 November 2023
101 Issue A / Landscape Plan – Ground Floor	Site Image Landscape Architects	8 November 2023
102 Issue A / Landscape Plan – Level 1	Site Image Landscape Architects	8 November 2023
103 Issue A / Landscape Plan – Level 2	Site Image Landscape Architects	8 November 2023
104 Issue A / Landscape Plan – Level 3	Site Image Landscape Architects	8 November 2023
401 Issue A / Landscape Planting Plan – Ground Floor	Site Image Landscape Architects	8 November 2023
402 Issue A / Landscape Planting Plan – Level 1	Site Image Landscape Architects	8 November 2023
403 Issue A / Landscape Planting Plan – Level 2	Site Image Landscape Architects	8 November 2023
404 Issue A / Landscape Planting Plan – Level 3	Site Image Landscape Architects	8 November 2023
500 Issue A / Landscape Specification & Indicative Plant Schedule	Site Image Landscape Architects	8 November 2023
501 Issue A / Landscape Details	Site Image Landscape Architects	8 November 2023
BASIX Certificate No. 887589M_06	Aspire Sustainability Consulting Pty Ltd	1 May 2024

5. I note that the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away in the sum of $20,000 within 28 days of the orders made in this appeal.

6. The changes between the as filed modification application and the amended application primarily are as follows:

• Deletion of basement level two;

• Reconfiguration of basement one (including use of car stackers);

• Reconfiguration of the ground floor (including deletion of the pedestrian link, car parking changes, changes to the commercial and office premises, increased landscaping along Rancom Street and changes to services);

• Further internal reconfiguration to the apartment layouts and level 3 communal open space;

• Voluntary planning agreement offer in lieu of the through site link.

7. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

8. 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.

9. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

11. I am satisfied that owners consent accompanied the modification application.

12. I have considered the documentation within the amended application and the parties’ agreed detailed jurisdictional statement at [6] – [20]. I accept that the proposed modifications to the approved shop top development, being the deletion of a basement level, reconfiguration of basement one and ground floor, changes to the ground floor commercial spaces, building separation changes throughout, change to the overall height of both ‘towers’ and reconfiguration of the apartments and communal open space, will be substantially the same as the original development (s 4.56(1)(a) of the EPA Act).

13. With respect to s 4.56(1)(b), (c) and (d) of the EPA Act, the modification application was notified between 30 September 2022 to 14 October 2022. No objections were received. I accept the parties’ agreement that these provisions have been met.

14. With respect to s 4.56(1A) of the EPA Act, in reviewing the parties’ submissions and Happy 2 Pty Ltd v Bayside Council [2020] NSWLEC 1000, and noting that the parties had reached agreement in that decision, the proposed modification application does not offend the reasons for the grant of consent.

15. The parties agree and I accept that the modification application is accompanied by an amended Design Verification Statement by a qualified registered architect (Mr Buljevic, registration number 7768) as required by s 102 of the EPA Reg that addresses s 147 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). As Mr Buljevic was not the registered architect of the original development, the parties confirm that the modification application had been referred to the design review panel for advice (s 146(2) of SEPP Housing).

16. I accept the parties’ agreement that the proposed modifications do not affect the development standards under the Bayside Local Environmental Plan 2021 (BLEP) as previously considered in the original application as set out in the jurisdictional statement, with the exception of building height.

17. The original development consent initially breached cl 4.3 of the BLEP, height of buildings. I accept the parties’ agreement that the additional increase in height is minor.

18. I accept the parties’ agreement that cl 6.9 of the BLEP active street frontages is still met, having regard to the ground floor changes and commercial uses along Botany Road shown on the amended architectural plans within the conditions of consent at Annexure A.

19. In accordance with ss 100 and 102 of the EPA Reg, an amended BASIX Certificate (number 887589M_06) accompanied the amended application. The parties agree and I accept that the provisions have been satisfied.

20. The parties agree and I accept that the provisions required to be addressed by ss 4.56 and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal, amended application, and supported by the jurisdictional statement.

Conclusion

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

23. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

24. The Court orders:

1. The appeal is upheld.

2. Development Consent DA-2017/1243 is modified in the terms at Annexure A.

3. Development Consent DA-2017/1243 as modified by the Court is at Annexure B.

……………………….

S Porter

Commissioner of the Court

120399.23 Annexure A

120399.23 Annexure B

**********

Amendments

01 August 2024 - Pursuant to rule 36.17 of the UCPR (the slip rule), amendments to Annexures A and B are made to the description of the development.

Decision last updated: 01 August 2024