Rye 10 Pty Ltd v Bayside Council

[2024] NSWLEC 1021

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rye 10 Pty Ltd v Bayside Council [2024] NSWLEC 1021

Hearing dates:

Conciliation conference on 19 January 2024

Date of orders:

25 January 2024

Decision date:

25 January 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Consent is granted to Modification Application MDA2023/90.

(2) Development consent DA-2017/194, granted by the Land and Environment Court on 31 January 2018, is modified in the terms in Annexure A.

(3) Development consent DA-2017/194, as modified by the Court, is Annexure B.

Catchwords:

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

Legislation Cited:

Bayside Local Environmental Plan 2021, cll 4.4, 4.6, 6.2, 6.4, 6.9

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Environmental Planning and Assessment Regulation 2021, ss 23, 113

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Pt 2, Div 2, ss 23, 24, 25

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Cases Cited:

Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157

Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709

Texts Cited:

Bayside Development Control Plan 2022

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Rye 10 Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
D Johnson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/173449

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These proceedings arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a development consent (DA2017/194) granted by the Court on 31 January 2018 in Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709 (the 2018 consent).

2. The 2018 consent approved the construction of a nine-storey boarding house above ground floor retail and two levels of basement on land described as Lot 2 in DP709394, being 295-301 Bay Street, Brighton-Le-Sands.

3. The Applicant now seeks approval for the following modifications to the development:

• The provision of an additional level of basement.

• Increase in number of boarding rooms from 79 to 84.

• Redesign of structural core and basement core.

• Redesign of Boarding House Foyer.

• Relocation of accessible rooms.

• Provision of additional retail space.

• Relocation of services.

• Change to the external façade of Bay Street.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 31 October 2023. That conciliation conference was adjourned, but ultimately terminated on 18 December 2023.

5. Following the conciliation conference, the parties continued without prejudice discussions and reached in principle agreement on the basis of amended plans and additional documents. By consent, the parties sought a further conciliation conference which was held on 19 January 2024. I presided over the further conciliation conference. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the Modification Application, as amended, subject to the annexed conditions.

6. As the presiding Commissioner, 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 form this state of satisfaction on the basis that:

1. The Modification Application is made with the consent of the owner of the land to which the development relates in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. This provision has a number of conditions that need to be satisfied. The provision states:

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

…

(2) Other modifications 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 development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, 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 the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) 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) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.

Is the development substantially the same: s 4.55(2)(a) of the EPA Act

1. After a comparison, I am satisfied that the 2018 consent, as proposed to be modified by this Modification Application, is substantially the same development as the development for which consent was originally granted. There is no ‘radical’ change to the development. The changes proposed do not substantially change the building footprint or massing. The Modification Application does not make transformative changes in the building height or gross floor area (GFA). The fundamental characteristics of the development, a boarding house over basement carparking with retail space, remain. I find that s 4.55(2)(a) of the EPA Act is satisfied.

Consultation with concurrence authorities: s 4.55(2)(b) of the EPA Act

1. The development application required concurrence from Water NSW, whose conditions were incorporated into the 2018 consent. The Modification Application was referred to Water NSW who issued updated general terms of approval on 8 January 2024. The conditions of consent nominated by Water NSW have been incorporated into the annexed conditions.

Notification: s 4.55(2)(c) and s 4.55(d) of the EPA Act

1. The Modification Application was notified in accordance with the EPA Regulation and the requirements of the Respondent’s Community Participation Plan, satisfying s 4.55(2)(c) of the EPA Act. I am satisfied that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and, where appropriate, have resulted in amendments or the imposition of conditions.

Matters at s 4.15 of the EPA Act: s 4.55(3) of the EPA Act

1. Under s 4.55(3) of the EPA Act, the consent authority must also take into consideration of two matters. Firstly, such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified.

2. With the assistance of the agreed jurisdictional note filed by the parties, I conclude, none of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application precludes the approval of the Modification Application for the reasons set out below:

1. Pursuant to Bayside Local Environmental Plan 2021 (LEP 2021), the site is zoned MU1 Mixed use and development for the purpose of a boarding house is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone.

2. Pursuant to cl 4.4 of LEP 2021, the maximum permissible floor space ratio is 3:1. The modification application seeks an increase in the gross floor area, although the development maintains a similar bulk and scale to the 2018 consent. As the Modification Application is made pursuant to s 4.55(8) of the EPA Act, a written request pursuant to cl 4.6 of LEP 2021 is not required.

3. The Modification Application includes additional structural engineering, core engineering and geotechnical information. Having considered these I accept the agreement of the parties that the matters at cl 6.2(3) of LEP 2021 have been considered.

4. The Modification Application includes updated stormwater plans which have been coordinated with the architectural plans. I accept the agreed position of the parties that to the extent that it applies as a consideration, the development as modified will continue to be consistent with the requirements of cl 6.4(3) of LEP 2021.

5. The parties agree, and I accept that, in respect of cl 6.9 Active street frontages, the Modification Application continues to activate the street frontage and there is no reduction in activation that will result from the amendment.

6. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, contamination and remediation was considered as part of the determination of the development application. No intervening events would warrant new consideration and the site remains suitable for the proposed use.

7. An amended BASIX certificate has been prepared, addressing the modified development as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

8. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies to the application as Bay Street is a classified road. However, vehicular access is not made available from Bay Street, satisfying this clause.

9. Section 2.120 of SEPP TI also applies as the Modification Application is a development involving residential accommodation that is on land adjacent to a road with an annual average daily traffic volume of more than 20,000 vehicles (Bay Street). The development is likely to be adversely affected by road noise or vibration.

10. Section 2.120(3) requires that for development involving residential accommodation, the consent authority is required to be satisfied that appropriate measures will be taken to ensure that the following noise (LAeq) levels are not exceeded:

(a)    in any bedroom in the residential accommodation—35 dB(A) at any time between 10pm and 7 am,

(b)    anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

11. The Modification Application retains the requirement for the development to be constructed in a manner consistent with the Acoustic Report that was submitted with the 2018 Consent. That report specifies appropriate construction standards to achieve the required sound levels. The proposal is acceptable with regard to the requirements of the SEPP TI.

12. Whilst the 2018 consent was approved under State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) apply to the modification application. The provisions of Pt 2 Div 2 of SEPP Housing apply. Against the relevant provisions, the modification application:

1. Is a permissible use: s 23 of SEPP Housing.

2. Requires a variation to the floor space ratio: s 24(2)(a)(ii) SEPP Housing. The parties agree, and I accept, that the increase in GFA mainly relates to the methodology of calculation of the GFA and that the overall bulk and scale and envelope is substantially the same as the Development Consent. No written request pursuant to cl 4.6 of LEP 2021 is required with respect to non-compliance with the FSR development standard (Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157 [8]-[9]).

3. The primary communal space obtains direct solar access in accordance with s 24(2)(e) of SEPP Housing.

4. That whilst the discretionary standard at s 24(2)(g) of SEPP Housing is not met, there are multiple communal spaces that have a minimum dimension of 3 metres, and the provision of communal space and its amenity has been increased and improved in the modification application.

5. Does not comply with the provision at s 25(1)(g) of SEPP Housing as the site does not meet the minimum requirement. However, as the application is a modification application the precondition is not required to be satisfied. Further, the site has the benefit of the 2018 consent which the parties agree has not lapsed.

6. In respect of the standards at s 25(2)(a) of SEPP Housing, the parties agree, and I accept, that the character of the development is an improvement from the 2018 consent with a materiality more in keeping with the current style as well as the desired future character of the precinct.

7. In respect of the standards at ss 25(2)(b) and (c) of SEPP Housing, the setbacks are consistent with those approved in the Development Consent and are more substantial for the rear than those required in the Apartment Design Guide. The side setbacks are nil, in accordance with the Council’s controls.

13. The parties agree, and I accept, that the modification application is acceptable when regard is had to the provisions of Bayside Development Control Plan 2022 (DCP 2022). Further, the likely impacts of the proposed development are acceptable and the site remains suitable for the proposed development.

14. Both the submissions received from the public and the broader public interest have been considered in the assessment and determination of the development application.

The reasons given by the consent authority: s 4.55(3) of the EPA Act

1. Section 4.55(3) of the EPA Act requires that the consent authority take into consideration the reasons given by the consent authority, in this instance the Court, for the grant of the consent. In determining the Modification Application, I have considered the reasons for the grant of consent within proceedings Parker Logan Property Pty Ltd v Bayside Council [2017] NSWLEC 1709.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. 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 modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

9. The Court notes that:

1. Bayside Council, as the relevant consent authority, has agreed to the amendment of the Modification Application in accordance with the documents listed below, pursuant to s 113 of the EPA Regulation. Further, the Court notes the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in the agreed amount of $4,250, to be paid within 7 days of the date of the orders.

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Cover Sheet	DA0.01	7	3 November 2023	JSA Studio / aardvarch
Site Plan	DA1.01	7	3 November 2023	JSA Studio / aardvarch
GFA Calculations	DA2.01	7	3 November 2023	JSA Studio / aardvarch
Communal Area Calculations	DA2.02	7	3 November 2023	JSA Studio / aardvarch
Basement Level 3 Plan	DA3.01	7	3 November 2023	JSA Studio / aardvarch
Basement Level 2 Plan	DA3.02	7	3 November 2023	JSA Studio / aardvarch
Basement Level 1 Plan	DA3.03	7	3 November 2023	JSA Studio / aardvarch
Ground Level Plan	DA3.04	7	3 November 2023	JSA Studio / aardvarch
Level 1 Plan	DA3.05	7	3 November 2023	JSA Studio / aardvarch
Level 2-8 Plan	DA3.06	7	3 November 2023	JSA Studio / aardvarch
Level 9 Plan	DA3.07	7	3 November 2023	JSA Studio / aardvarch
Roof Plan	DA3.08	7	3 November 2023	JSA Studio / aardvarch
Room Layouts 1	DA4.01	7	3 November 2023	JSA Studio / aardvarch
Room Layouts 2	DA4.02	7	3 November 2023	JSA Studio / aardvarch
Room Layouts 3	DA4.03	7	3 November 2023	JSA Studio / aardvarch
Room Layouts 4	DA4.04	7	3 November 2023	JSA Studio / aardvarch
Section A	DA5.01	7	3 November 2023	JSA Studio / aardvarch
Section B	DA5.02	7	3 November 2023	JSA Studio / aardvarch
Driveway Ramp Section	DA5.03	7	3 November 2023	JSA Studio / aardvarch
Section D - OSD / Planter	DA5.04	7	3 November 2023	JSA Studio / aardvarch
Section E - Planter / Walkway	DA5.05	7	3 November 2023	JSA Studio / aardvarch
North & South Elevations	DA6.01	7	3 November 2023	JSA Studio / aardvarch
West Elevation	DA6.02	7	3 November 2023	JSA Studio / aardvarch
East Elevation	DA6.03	7	3 November 2023	JSA Studio / aardvarch
Shadow Diagram - 21 June, 9 am	DA7.01	7	3 November 2023	JSA Studio / aardvarch
Shadow Diagram - 21 June, 12 pm	DA7.02	7	3 November 2023	JSA Studio / aardvarch
Shadow Diagram - 21 June, 3pm	DA7.03	7	3 November 2023	JSA Studio / aardvarch
Views from the sun - sheet 1	DA7.04	7	3 November 2023	JSA Studio / aardvarch
Views from the sun - sheet 2	DA7.05	7	3 November 2023	JSA Studio / aardvarch
Direct Solar Access to Level 1Communal Living Room	DA7.06	7	3 November 2023	JSA Studio / aardvarch
Bay Street Photomontage - Sheet 1	DA8.01	7	3 November 2023	JSA Studio / aardvarch
Bay Street Photomontage - Sheet 2	DA8.02	7	3 November 2023	JSA Studio / aardvarch
Bay Street Photomontage – Sheet 3	DA8.03	7	3 November 2023	JSA Studio / aardvarch
Queens Road Photomontage	DA8.04	7	3 November 2023	JSA Studio / aardvarch
Amended Stormwater Plans
Notes and Legend	C001	2	9 November 2023	JN Responsive Engineering
Typical Details – Sheet 1	C050	2	9 November 2023	JN Responsive Engineering
Typical Details – Sheet 2	C051	2	9 November 2023	JN Responsive Engineering
OSD Details Sheet	C052	2	9 November 2023	JN Responsive Engineering
Basement 3 Stormwater Plan	C100	2	9 November 2023	JN Responsive Engineering
Basement 2 Stormwater Plan	C110	2	9 November 2023	JN Responsive Engineering
Basement 1 Stormwater Plan	C120	2	9 November 2023	JN Responsive Engineering
Ground Stormwater Plan	C200	2	9 November 2023	JN Responsive Engineering
Level 1 Stormwater Plan	C210	2	9 November 2023	JN Responsive Engineering
Roof Stormwater Plan	C300	2	9 November 2023	JN Responsive Engineering
OSD Catchment Plan	C400	2	9 November 2023	JN Responsive Engineering
WSUD Catchment Plan	C500	2	9 November 2023	JN Responsive Engineering
Amended Landscape Plans
Ground Floor Plan	23-4937 LO1	B	31 October 2023	Zenith Landscape Designs
First Floor Plan 1:100	23-4937 LO2	B	31 October 2023	Zenith Landscape Designs
First Floor Plan 1:150	23-4937 LO3	B	31 October 2023	Zenith Landscape Designs
Reports
Further Schedule of Amendments prepared by JSA Studio
Geotechnical Report prepared by Aargus dated 9 October 2023
Operational Plan of management prepared by Parker Logan Property dated 3 November 2023

10. The Court orders that:

1. Consent is granted to Modification Application MDA2023/90.

2. Development consent DA-2017/194, granted by the Land and Environment Court on 31 January 2018, is modified in the terms in Annexure A.

3. Development consent DA-2017/194, as modified by the Court, is Annexure B.

D Dickson

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 25 January 2024