SRGD No.2 Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1417

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SRGD No.2 Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1417

Hearing dates:

Conciliation conference on 29 June 2023

Date of orders:

02 August 2023

Decision date:

02 August 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away, as a result of the amendments, in the sum of $8000 within 14 days of the date of this order.
(2) The appeal is upheld.
(3) The Modification Application, to modify the development consent granted by the Court to Development Application No 0043/22 on 8 December 2022, for internal changes to the basement layout and walling, internal changes to layouts of most townhouses in the bathrooms and kitchens, deletion of lift lobbies in the basement, to extend the lift service to the attic floor level in 14 dwellings, and the reduction in the number of skylights, is approved, subject to the consolidated conditions of Development Consent set out in Annexure “A” to this judgment.

Catchwords:

MODIFICATION APPLICATION – multi dwelling housing – amended plans – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 2.22, 4.55, Sch 1
Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

SRGD No.2 Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/120315

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to a modification application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) by SRGD No.2 Pty Ltd (Applicant).

2. The modification application seeks to modify a development consent granted by the Court in proceedings No 2022/00115714 for the construction of 20 dwellings with one level of basement carparking plus associated civil and landscaping works, at 6-12 Nulla Nulla Street, Turramurra, NSW 2074. The application is to make internal changes to the basement layout and walling, internal changes to the layout of the kitchens and bathrooms in most townhouses, delete lift lobbies in the basement, extend lift service to the attic floor level in 14 townhouses, change the layout of and amend the external door and window arrangement to townhouse 1, and reduce the number of skylights in the townhouses to 16.

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 29 June 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 development application was notified, between 10 May and 24 May 2023, in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act. All matters of relevance raised in the submissions to the modification have been taken into consideration.

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 development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

9. 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

10. The Court orders that:

1. In accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away, as a result of the amendments, in the sum of $8000 within 14 days of the date of this order.

2. The appeal is upheld.

3. The Modification Application, to modify the development consent granted by the Court to Development Application No 0043/22 on 8 December 2022, for internal changes to the basement layout and walling, internal changes to layouts of most townhouses in the bathrooms and kitchens, deletion of lift lobbies in the basement, to extend the lift service to the attic floor level in 14 dwellings, and the reduction in the number of skylights, is approved, subject to the consolidated conditions of Development Consent set out in Annexure “A” to this judgment.

S Harding AC

Acting Commissioner of the Court

Annexure A

**********

Amendments

05 September 2023 - Amendment to correct a clerical mistake at the Parties section on the coversheet.