Princeton Capstack Pty Ltd ATF Princeton Blackhurst Equity Trust v Georges River Council

[2024] NSWLEC 1318

Land and Environment Court

New South Wales

Medium Neutral Citation:

Princeton Capstack Pty Ltd ATF Princeton Blackhurst Equity Trust v Georges River Council [2024] NSWLEC 1318

Hearing dates:

Conciliation conference held on 20 May 2024

Date of orders:

13 June 2024

Decision date:

13 June 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA2018/0237 is modified by consent in the terms set out in Annexure A.

(3) Development Consent DA2018/0237 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Catchwords:

MODIFICATION APPLICATION – amended residential flat building design for improved services – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 98, 113

Georges River Local Environmental Plan 2021

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Princeton Capstack Pty Ltd ATF Princeton Blackhurst Equity Trust (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
S Lasker (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/307194

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal relating to the deemed refusal of Modification Application MOD2023/0009 (the MA) seeking to modify Development Consent DA2018/0237 (the Consent), for the construction of a residential flat building (RFB) on Lot 9 Deposited Plan (DP) 80533 and Lot 9 DP 13988, also known as 6 and 8 Vaughan Street, Blakehurst, respectively (the site).

2. The Consent was approved by Georges River Council (hereafter the Council), and the MA was lodged on 21 February 2023.

3. The MA appeal is made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), under consideration of s 4.55(1A) of the Act. The MA seeks to modify the architectural design of the RFB to better service the site with a new substation, new booster/sprinkler system, amended position of sewer, retaining wall, lift and fire stairs.

4. The Land and Environment Court (the Court) agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), starting onsite by request of the parties.

5. Based on the amendments to the design of the RFB within the existing building envelope, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the Council has undertaken an appropriate merit assessment.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of ss 4.15(1A) and 4.55, to modify the Consent, subject to Annexure A, and as described in Annexure B.

7. The requirements of s 4.55(1A) and (3) of the EPA Act are considered in the modification of the Consent, as follows:

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

….

(1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), 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 any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) 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. The modification to the Consent, as described in Annexure A, is substantially the same as originally approved, specifically with regards to the intent of the Consent to ensure appropriate services to enable use of the site. The amendments to the design of the RFB are within the approved building envelope and result in an improved use of the site. There proposed changes result in minimal environmental impact.

9. The requirements of s 4.55(1A)(a) and (b) of the EPA Act are considered satisfied by the amendments made to the Consent.

10. The Council confirms that notification of the MA was made, pursuant to the requirements of the Georges River Development Control Plan 2021 (GRDCP). The Court was advised that there was one objection that related to the MA, and the issue raised have been considered in the merit assessment of Council. Subsections 4.55(1A)(c) and (d) of the EPA Act are satisfied.

11. The amendments to the Consent address all relevant jurisdictional requirements and are consistent with the provisions of the Georges River Local Environmental Plan 2021. The relevant requirements of the GRDCP are achieved. In satisfaction of the requirements of s 4.15(1) of the EPA Act, the Consent remains substantially unchanged, results in minimal environmental impact, and provides for an improved use of the RFB. The requirements of s 4.55(3) are addressed.

12. I am satisfied, based on the evidence before the Court, that pursuant to s 4.55 of the EPA Act, there are no jurisdictional impediments to the modification to the Consent, as described in Annexures A and B. I have considered the evidence of the experts and jurisdictional statement of the parties.

13. All works and actions relied on by the MA are specific to the site and the Applicants are the owners of the site, pursuant to s 98(1)(a) of the Environmental Planning and Assessment Regulation 2021.

14. The Court notes that:

1. Georges River Council as the relevant consent authority for the purposes of s 113 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending the modification application to incorporate the following amended plans and documentation:

1. Architectural Plans prepared by Architex, as follows:

C	Plan Title	Revision	Dated
S00	Cover Sheet – S4.55 Application	N	01.02.24
S01	Site Plan	L	14.12.23
S02	Bulk Excavation Plan	I	07.11.22
S03	Basement Level 02	L	14.12.23
S04	Basement Level 01	L	14.12.23
S05	Ground Floor Level	L	14.12.23
S06	Level 01	N	01.02.24
S07	Level 02	L	14.12.23
S08	Level 03	L	14.12.23
S09	Roof Level	L	14.12.23
S10	Site Elevation	N	01.02.24
S11	Site Elevation	L	14.12.23
S12	Site Elevation	L	14.12.23
S13	Site Elevation	L	14.12.23
S14	Site Section	Q	13.05.24
S15	Site Section	Q	13.05.24
S16	Site Section	Q	13.05.24
S17	3D Building Height Plane – Previous	I	07.11.22
S17-B	3D Building Height Plane – NEW	Q	13.05.24
S18	Site Details	N	01.02.24
S19	Driveway Ramp Section	I	07.11.22
S23	DA Comparative Diagrams	I	07.11.22
S24	DA Comparative Diagrams	I	07.11.22
S25	DA Comparative Diagrams	I	07.11.22
S26	Basement Height out of Ground	I	07.11.22
S27	FSR Calculation Diagrams	N	01.02.24

2. Landscape Plans prepared by Architex, as follows:

Drawing No.	Plan Title	Revision	Dated
22014 CC 1-3	Legend /Detail / Plant Schedule	C	06.02.24
22014 CC 2-3	Ground Level Landscape Plan	C	06.02.24
22014 CC 3-3	Level 3 Landscape Plan	C	06.02.24

3. BASIX Certificate 931977M_04 prepared by Bonnefin Consulting Pty Ltd ad dated 24 May 2024.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA2018/0237 is modified by consent in the terms set out in Annexure A.

3. Development Consent DA2018/0237 is subject to the consolidated conditions as modified by the Court and described in Annexure B.

Sarah Bish

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 13 June 2024