Urban Abode Developments Pty Ltd v Goulburn Mulwaree Council

[2022] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Abode Developments Pty Ltd v Goulburn Mulwaree Council [2022] NSWLEC 1151

Hearing dates:

Conciliation conference on 4 March 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Modification Application No. MODDA/0108/2021 to modify Development Consent No. 0234/1718 (as modified by MODDA/0020/1819, MODDA/0009/1920 and MODDA/001/2021) to replace approved Block A (4 dwellings) with 5 dwellings (T1-T5) arranged in two blocks, increasing the total number of approved dwellings from 39 to 40, at 17 Fenwick Crescent, Goulburn, is approved, subject to the consolidated conditions of consent, at Annexure A.

Catchwords:

MODIFICATION APPLICATION – approved multi-dwelling housing development – two additional dwellings and changes to the site layout – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979,
ss 4.16, 4.55, 8.9
Goulburn Mulwaree Local Environmental Plan 2009,
cl 5.10, Sch 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Urban Abode Developments Pty Ltd (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
A. Perkins (Solicitor) (Applicant)
B. Dyer (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/310460

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. MODDA/0108/2021 to modify Development Consent No. 0234/1718 (as modified), to add an additional dwelling and change the site layout (the proposal), at 17 Fenwick Crescent, Goulburn (the site) by Goulburn Mulwaree Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 March 2022 via Microsoft Teams. I presided over the conciliation conference.

3. 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.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are preconditions to the exercise of power to modify the development consent, pursuant to s 4.55(2) of the EPA Act.

Planning framework

6. The application is made pursuant to s 4.55(2) of the EPA Act, which is in the following terms:

(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.

7. The site is zoned B4 Mixed Use pursuant to the Goulburn Mulwaree Local Environmental Plan 2009 (LEP 2009). The objectives of the zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To maintain and reinforce the role and function of the Goulburn central business district as a major regional centre.

• To protect the amenity of the areas surrounding the commercial core from encroachment by commercial and retail development, which should be located within the commercial core because of the demand generated by such development for parking and public infrastructure.

8. Multi-dwelling housing is an innominate permissible use in the B4 zone.

9. The site is within a heritage conservation area (Heritage Map - Sheet HER_001DE and Sch 5 to LEP 2009) and the consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the area before granting consent, pursuant to cl 5.10(4) of LEP 2009.

Background

10. Development Consent No. 0234/1718 (the original consent) was approved by the Council on 4 September 2018. The original consent has since been modified (the approved development), as follows:

• MODDA/0020/1819 approved by the Council on 11 April 2019;

• MODDA/009/1920 approved by the Council on 14 August 2019; and

• MODDA/001/2021 approved by the Council on 24 July 2020.

11. The site is legally known as Lots 1 to 19 in DP 271268. The application relates to Lot 2.

Public submissions

12. One objector gave evidence at the commencement of the conciliation conference and another objection to the proposal was filed with the Court prior to the conciliation conference. The concerns of the objector can be summarised as:

• The proposal increases the bulk and scale of the approved development.

• The proposal results in increased amenity impacts on the dwellings fronting Lagoon Street because the orientation of the development is changed.

• The proposal results in non-compliances with 19 applicable planning controls.

• The site is within a heritage conservation area.

Consideration

13. I accept the Council’s submission that the proposal is substantially the same development as the original consent, within the meaning of s 4.55(2)(a) of the EPA Act, because the additional dwelling and the changes to the site layout result in a development that is qualitatively and quantitatively the same development as the development for which consent was originally granted, as summarised in the table below:

Original Development DA/0234/1718

Proposal

Demolition of existing structures and staged construction of 39 attached dwellings within community title subdivision. A short-term temporary sales office and signage (estate name).

Modification to replace approved block A (4 dwellings) with 5 town houses (T1-T5) arranged in two blocks increasing approved dwellings from 39 to 40.

FSR – 0.72:1 (overall development)

FSR – 0.69:1 (202m² decrease)

(Block A)

0.72:1 757.44m²

FSR (Block T)

623.57 (133.87m² decrease)

Private Open Space (Overall Development)

1944 m²

Private Open Space (Overall Development)

1955 m²

Private Open Space (Block A)

223 m²

Private Open Space (Block T)

266 m²

14. I accept the Council’s submission that the Council consulted with Water NSW as part of the consultation requirements under s 4.55(2)(b) of the EPA Act and received updated concurrence advice which has been incorporated into the consolidated conditions of consent.

15. I accept the Council’s submission that the application has been notified in accordance with the Goulburn Mulwaree Community Participation Plan and the submissions concerning the application have been considered, pursuant to s 4.55(2)(c) of the EPA Act. I accept the Council’s submission that the changes made to the proposal, by conditions, satisfactorily address the concerns raised by the objectors by reducing the overall bulk and scale of the development, reinstating the approved view corridor, and limiting the privacy impacts of the development on the neighbouring dwelling fronting Lagoon Street by increasing the ground floor setbacks and removing the first floor balconies.

16. I accept the Council’s submission that the proposal will have an acceptable impact on the heritage significance of the nearby heritage item and heritage conservation area, because the proposal does not significantly alter the bulk and scale of the development for which consent has already been granted.

17. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 21 March 2022, 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.

Orders

18. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application No. MODDA/0108/2021 to modify Development Consent No. 0234/1718 (as modified by MODDA/0020/1819, MODDA/0009/1920 and MODDA/001/2021) to replace approved Block A (4 dwellings) with 5 dwellings (T1-T5) arranged in two blocks, increasing the total number of approved dwellings from 39 to 40, at 17 Fenwick Crescent, Goulburn, is approved, subject to the consolidated conditions of consent, at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (643175, pdf)

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Decision last updated: 24 March 2022