Primus DMS Pty Ltd v Bayside Council

[2023] NSWLEC 1624

Land and Environment Court

New South Wales

Medium Neutral Citation:

Primus DMS Pty Ltd v Bayside Council [2023] NSWLEC 1624

Hearing dates:

Conciliation conference on 13 and 19 September 2023

Date of orders:

24 October 2023

Decision date:

24 October 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) The Modification Application, to modify the Development Consent DA-2019/352 at 602 - 606 Princes Highway, Rockdale NSW 2216, is approved and the Development Consent is modified as set out in Annexure “A” to this judgment.
(3) Development Consent DA-2019/352, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

Catchwords:

MODIFICATION APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Architects Act 2003
Environmental Planning and Assessment Act 1979, ss 4.55, 8.15, 8.9
Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113, Sch 7
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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):

2023/112097

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Primus DMS Pty Ltd (Applicant) against Bayside Council’s (the Respondent) deemed refusal of the Modification Application made pursuant to s 4.55(2) of the EPA Act.

2. The application is to modify Development Consent DA-2019/352 issued by Council on 9 February 2021. This Modification Application (MDA-2022/167) seeks consent to increase the number of dwellings to 58 (from 57), make changes to the dwelling mix and make internal and external changes to the approved building, at 602 - 606 Princes Highway, Rockdale NSW 2216.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 and 19 September 2023. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the agreement of the parties if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As this is a modification application pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent as modified relates, is “substantially the same” as the development for which consent was originally granted. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. This is, in part, because the modification maintains the general approved envelope and maintains compliance with numerical controls relating to floor space ratio and car parking.

7. On review of the amendments made to the application, I am also satisfied that the proposed development, as modified, does not involve a radical transformation of the development and the essence of the development remains the same. It is for these reasons that I am satisfied that the modified application passes the “substantially the same” test for modification applications.

8. There were no objections to the Modification Application arising from any public authority or approval body who imposed conditions or general terms of approval with respect to the Development Consent. In terms of s 4.55(2)(b) of the EPA Act:

1. The Modification Application was referred to Transport for NSW who provided a response on 11 November 2022 to the effect that the original conditions remain applicable; and,

2. The Modification Application was referred to Water NSW who provided a response on 18 January 2023 to the effect that the original general terms of approval issued in relation to the original development application were still current.

9. The original development application was notified to Sydney Airport Corporation Limited (SACL) as a consultation process (as distinct from seeking concurrence). The parties agree that the current proposal is within the parameters for height outlined in the original conditions of consent requested by SACL.

10. The Modification Application was notified to adjoining and nearby landowners from 24 October to 7 November 2022. No objections were received.

11. Section 102 of the Environmental Planning and Assessment Regulation 2021 (the Regulation) requires a modification application to be accompanied by a statement by a qualified designer, defined at Sch 7 as a person registered as an architect under the Architects Act 2003. This has been included in the application material. The Modification Application was also considered by the local Design Review Panel.

12. An amended BASIX certificate, dated 18 September 2023, has been filed in accordance with the requirements of s 100(3) of the Regulation and in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

13. The parties have demonstrated that the relevant jurisdictional matters requiring considerations in the original development assessment have been undertaken.

14. 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 s 4.55(3) of the EPA Act.

15. It is noted that the Bayside Council agreed, under s113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the application. The Court notes that the applicant and the respondent have agreed that the applicant is to pay the respondent’s costs in the fixed sum of $13,500 within 28 days of the date of these orders.

16. Based on the material provided by the parties, 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 am, therefore, required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

Conclusions

17. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. The Modification Application, to modify the Development Consent DA-2019/352 at 602 - 606 Princes Highway, Rockdale NSW 2216, is approved and the Development Consent is modified as set out in Annexure “A” to this judgment.

3. Development Consent DA-2019/352, as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure “B” to this judgment.

S Harding AC

Acting Commissioner of the Court

112097.23 Annexure A

112097.23 Annexure B

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Decision last updated: 24 October 2023