Princeton Capstack Pty Ltd v Inner West Council

[2023] NSWLEC 1449

Land and Environment Court

New South Wales

Medium Neutral Citation:

Princeton Capstack Pty Ltd v Inner West Council [2023] NSWLEC 1449

Hearing dates:

Conciliation conference held on 27 July 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA/2021/0521 for adaptive re-use of the existing buildings and alterations and additions to provide six multi dwelling units and associated works, including car parking, site remediation and street tree removal and replacement at 73-75 Beattie Street, Balmain is modified in the terms in Annexure “A”.

(3) Development consent DA/2021/0521 as modified by the Court is at Annexure “B”.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56
Land and Environment Court Act 1979, s 34

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Belle Living Pty Ltd v Inner West Council [2022] NSWLEC 1068

Category:

Principal judgment

Parties:

Princeton Capstack Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

A Boskovitz (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/94812

Publication restriction:

Nil

Judgment

1. COMMISSIONER: On 10 February 2022, the Land and Environment Court granted consent in relation to D/2021/0521 which provided for the adaptive re-use of existing buildings and alterations and additions to provide six dwellings, and associated development, at 73-75 Beattie Street, Balmain (Belle Living Pty Ltd v Inner West Council [2022] NSWLEC 1068).

2. This modification application (referenced as MOD/2023/0008) seeks to modify the consent granted to DA/2021/0521 by deleting condition 2(d). Condition 2(d) provides for design changes to be undertaken prior to the issue of a construction certificate as follows:

“The retention of the conveyor belt in its current position.”

3. The modification application, as such, is made pursuant to the provisions of s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act), with the applicant appealing against deemed refusal by Inner West Council (Council).

Agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 July 2023, and at which I presided. After the conciliation conference the parties filed an 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 and granting consent to the modification application.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to grant consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. By way of a jurisdictional statement provided to the Court on 1 August 2023, the parties outlined matters of jurisdictional relevance in these proceedings and explained how they have been or could be satisfied.

Jurisdiction

7. In regard to jurisdiction and mindful of the parties’ statement, I find as follows:

1. Having regard to s 4.56(1)(a) of the EPA Act, I agree with the expressed view of the parties in the jurisdictional statement and am 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. The proposed changes are alterations without radical transformation. As modified, the development would essentially, and materially, have the same essence as that originally approved (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]).

2. Having regard to s 4.56(1)(b), I accept the advice of the parties that the modification application was notified in accordance with requirements.

3. Having regard to s 4.56(1)(c), I accept the advice of the parties that no submissions were received in respect of DA/2021/0521.

4. In respect of s 4.56(1)(d), no submissions were received in response to the modification application.

5. In respect of s 4.56(1A), I accept the advice of the parties that those matters at s 4.15(1) of the EPA Act have been considered as part of the assessment of the modification application. I, too, have taken into consideration relevant matters under s 4.15(1) of the EPA Act, noting the various related commentary in the parties’ jurisdictional statement. Here in particular I note the proposed methodology for the conveyor belt relocation as nominated in proposed additional conditions.

Conclusion

8. 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. In turn, I am required under related provisions to dispose of the proceedings in accordance with the parties’ decision. In accordance with these legal provisions, the Court’s functions do not include the consideration of the overall merits of the proposal in this instance.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA/2021/0521 for adaptive re-use of the existing buildings and alterations and additions to provide six multi dwelling units and associated works, including car parking, site remediation and street tree removal and replacement at 73-75 Beattie Street, Balmain is modified in the terms in Annexure “A”.

3. Development consent DA/2021/0521 as modified by the Court is at Annexure “B”.

……………………….

P Walsh

Commissioner of the Court

Annexure A (158115, pdf)

Annexure B (404489, pdf)

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Decision last updated: 11 August 2023