Steve Macri v Northern Beaches Council

[2024] NSWLEC 1195

Land and Environment Court

New South Wales

Medium Neutral Citation:

Steve Macri v Northern Beaches Council [2024] NSWLEC 1195

Hearing dates:

Conciliation Conference on 1 March 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is granted.

(2) Development consent DA2020/1351 is modified in the terms in Annexure “A”.

(3) Development consent DA2020/1351 as modified by the Court is Annexure “B”.

Catchwords:

MODIFICATION APPLICATION – shop top housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 102, 113

Pittwater Local Environmental Plan 2014

State Environmental Planning Policy (Housing) 2021, s 147
State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:

Macri v Northern Beaches Council [2021] NSWLEC 1685

Category:

Principal judgment

Parties:

Steve Macri (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Domingo (Solicitor) (Respondent)

Solicitors:
Sattler & Associates (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/268177

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court development consent (Macri v Northern Beaches Council [2021] NSWLEC 1685). The modification application was filed with the Court on 20 August 2023.

2. The Applicant seeks to modify DA2020/1351, primarily in relation to changes to the basement and ground floor. These changes include deletion of basement two, reconfiguration of basement one, inclusion of car stackers, reconfiguration of the ground floor (including a smaller proposed colonnade, changes to the stairs and other services, changes to unit 102 and amendments to conditions 17 and 63), to the approved development at 1 Bilambee Lane, Bilgola Plateau (site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties for 1 March 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting the appeal for the modification application and modifying the development consent.

5. The Court notes that Northern Beaches Council, as the relevant consent authority, has agreed pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application MOD2023/0613 to rely upon the amended architectural plans and supporting information (amended application) listed as follows:

Plan	Plan No.	Revision/ Issue No	Plan Date (as Amended)	Prepared by
Basement Plan	DA-0101	E	6.3.24	Artiva Architects
Ground Floor Plan	DA-0102	E	6.3.24	Artiva Architects
Level 1 Plan	DA-0103	B	4.10.23	Artiva Architects
Level 2 Plan	DA-0104	B	4.10.23	Artiva Architects
Roof Plan	DA-0106	B	4.10.23	Artiva Architects
North Elevation	DA-0200	B	4.10.23	Artiva Architects
South Elevation	DA-0201	D	6.3.24	Artiva Architects
East Elevation	DA-0202	D	6.3.24	Artiva Architects
West Elevation	DA-0203	B	4.10.23	Artiva Architects
Section AA	DA-0300	E	6.3.24	Artiva Architects
Section BB	DA-0301	C	12.12.23	Artiva Architects
Reports	Date	Version	Prepared By
Mechanical Plant Acoustic Review – Report No. nss24040	September 2023	Final	Noise and Sound Services Pty Ltd
BCA/NCC Compliance Assessment	12.10.23	Surescope Building Certifiers
Statement of Compliance Access for People with a Disability – Job No. 220187	7.3.24	-	Accessible Building Solutions
Geotechnical Assessment - Proj. No. 30538/8569D-G; Report No. 24/0542	7.3.24	-	STS Geotechnics
Preliminary Car Park Management Plan Ref. 20-072-4	13.3.24	-	Stanbury Traffic Planning
Design Verification Statement	12.3.24	-	Artiva Architects
Updated Parking & Traffic Impact Assessment – Ref. 20-072-4	13.3.24	-	Stanbury Traffic Planning

6. Accompanying the submitted s 34 agreement, submitted to the Court 27 March 2024, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

10. I am satisfied that owners consent accompanied the modification application.

11. With consideration of the amended application and the parties’ agreed submissions I accept that the proposed modifications, primarily being the deletion of a basement level, reconfiguration of basement one and ground floor, changes to unit 102 and changes to the nominated conditions will be substantially the same as the original development.

12. With respect to s 4.55(2)(c) and (d), the modification application was notified between 7 September 2023 to 22 September 2023 and 28 September 2023 to 12 October 2023. Five objections were received. A without prejudice set of plans were provided to objectors for comment on 22 February 2024. Three objections were received.

13. In reaching agreement, Council as the consent authority has considered the concerns raised by the submissions in reaching resolution.

14. With respect to s 4.55(3), in reviewing the parties’ submissions, Macri v Northern Beaches Council [2021] NSWLEC 1685 and noting that the parties had reached agreement in that decision, the proposed modification application does not offend the reasons for the grant of consent.

15. The parties agree and I accept that the modification application is accompanied by an amended Design Verification Statement by the nominated qualified architect (Winston Chu, Registration number 6848) as required by s 102 of the EPA Reg that addresses s 147 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

16. I accept the parties agreement that the proposed modifications do not affect the development standards under the Pittwater Local Environmental Plan 2014 (PLEP) as previously considered in the original application as set out in the jurisdictional statement.

17. The parties advise that pursuant to State Environmental Planning Policy (Transport and Infrastructure) 2021, the modification application was notified to Ausgrid who did not object. The relevant conditions remain in Annexure B.

18. The parties agree and I accept that the provisions required to be considered by ss 4.55(2), 4.55(3) and 4.15(1) of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal, amended application, and supported by the jurisdictional statement.

Conclusion

19. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

20. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

21. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

22. The Court orders:

1. The appeal is granted.

2. Development consent DA2020/1351 is modified in the terms in Annexure “A”.

3. Development consent DA2020/1351 as modified by the Court is Annexure “B”.

S Porter

Commissioner of the Court

268177.23 Annexure A 

268177.23 Annexure B  

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Decision last updated: 18 April 2024