Rodborough Development Pty Ltd v North Sydney Council

[2023] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rodborough Development Pty Ltd v North Sydney Council [2023] NSWLEC 1176

Hearing dates:

Conciliation conference on 16 March 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.

(2) Modification Application No. DA232/2020/03, to modify the Development Consent DA232/2020 at 5 Rodborough Avenue, Crows Nest (formerly 1-11 Rodborough Avenue), is approved and the Development Consent granted to Development Application DA232/2020 by the Respondent on 7 July 2021, is modified as set out in Annexure “A” to this judgment.

(3) The Development Consent, to be modified by Modification Application No. DA232/2020/03, 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:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 102, Sch 7

Category:

Principal judgment

Parties:

Rodborough development Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor) (Applicant)
K Law (Solicitor) (Respondent)

Solicitors:
Sattler and Associates (Applicant)
Matthews Folbigg Pty Ltd (Respondent)

File Number(s):

2022/350239

Publication restriction:

No

Judgment

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

2. The application is to modify the Development Consent No 232/2020 issued by Council on 7 July 2021. This Modification Application, numbered DA232/2020/03, as finally amended, seeks consent to enlarge the floor area of the apartment approved at the upper level of the building at 5 Rodborough Road, Crows Nest (formerly 1-11 Rodborough Avenue).

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 16 March 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 to 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. On review of the minor 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.

7. The Modification application in its original form, and then amended form, was advertised and notified to adjoining and nearby landowners in accordance with Council’s notification policy from 8 April 2022 to 22 April 2022 and 29 August 2022 to 12 September 2022, respectively. Council received 22 submissions objecting to the proposal.

8. The submissions raised matters to do with height, character, precedent, impact on school, bulk, scale, overshadowing to property to the south, tree removal, privacy/overlooking, lack of communal open space, reduced EV charging spaces, light spillage, devaluation of surrounding properties and construction disturbance. The objectors’ concerns were considered by the Council and were incorporated into the Statement of Facts and Contentions (SOFAC’s). These concerns have also been considered by the parties in the resolution of the proceedings. I am satisfied that the notification requirements have been met.

9. Section 102 of the Environmental Planning and Assessment Regulation 2021 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.

10. 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.

11. 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

12. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Modification Application No. DA232/2020/03, to modify the Development Consent DA232/2020 at 5 Rodborough Avenue, Crows Nest (formerly 1-11 Rodborough Avenue), is approved and the Development Consent granted to Development Application DA232/2020 by the Respondent on 7 July 2021, is modified as set out in Annexure “A” to this judgment.

3. The Development Consent, to be modified by Modification Application No. DA232/2020/03, 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

350239.22 Annexure A (171400, pdf)

350239.22 Annexure B (638972, pdf)

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Decision last updated: 19 April 2023