Vigor Master Pty Ltd v Northern Beaches Council

[2020] NSWLEC 1407

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vigor Master Pty Ltd v Northern Beaches Council [2020] NSWLEC 1407

Hearing dates:

Conciliation conference on 28 August 2020

Date of orders:

03 September 2020

Decision date:

03 September 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

See orders at [8] below.

Catchwords:

MODIFICATION APPLICATION – modification of boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Warringah Local Environmental Plan 2000

Category:

Principal judgment

Parties:

Vigor Master Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
Y Wang (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Vigor Master Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2019/242258

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 Vigor Master Pty Ltd who appeals the refusal of their modification application MOD2019/0226 by Northern Beaches Council.

2. The Applicant has the benefit of Development Consent DA2013/0587 granted by the Respondent for construction of a boarding house at Lot 2506 Bundaleer Street, Belrose (Lot 2506 DP 752038). The modification (under s 4.55(1A) of the EPA Act) seeks to modify the development consent by the installation of kitchens, sliding glazed doors and fenced areas of private open space ranging from 8.8m² to 9.1m² on the northern elevation to the four (4) approved basement units.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 28 August 2020. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the modified conditions annexed to this judgment.

5. 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 have formed this state of satisfaction for the following reasons:

1. The modification application was made with the consent in writing of the owners of the land to which the modification application relates.

2. I am satisfied that the proposed modification is of minimal environmental impact.

3. I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

4. I am satisfied that the modification application was notified, and any submissions received have been considered in the determination of the modification application.

5. In making these orders I have taken into consideration those matters under s 4.15(1A) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.

6. Pursuant to Warringah Local Environmental Plan 2000 (LEP 2000), the subject site is located within the C8 Belrose North Locality. Boarding houses are permitted with consent as Category 2 development under LEP 2000.

7. In granting consent to the modification application, I have given consideration to the matter detailed in cl 12 of LEP 2000. Specifically, I am satisfied that the development is consistent with the matters listed at cl 12(1) of LEP 2000 and will comply with the matters listed at cl 12(2) of LEP 2000. Further, I am satisfied that the development is consistent with the desired future character described in the relevant Locality Statement.

8. The Applicant seeks to vary the housing density provision applicable to the C8 Belrose North Locality through the provisions of cl 20 of LEP 2000. In granting consent, as required by cl 20 of LEP 2000, I am satisfied that the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. Further, pursuant to the C8 Belrose North Locality Statement, consent for a variation of greater than10% may only be granted with concurrence of the Director. Such concurrence has been obtained through correspondence of the NSW Department of Planning and Environment dated 9 July 2020.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

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

1. The Applicant is granted leave to rely upon the following amended plans and documents:

Document	Prepared by	Date
Architectural plans numbered M-101, M-200, M-301 and M-302, ref DA2506-0513	Vigor Master Pty Ltd	7 April 2020
Clause 20 Variation request	PPD Planning Consultants	8 April 2020
BASIX Certificate No. 1072370M	Thermal Performance	8 March 2020
BCA 2016 Section J Compliance Report version 5	Thermal Performance	8 March 2020

2. Appeal is upheld;

3. Section 4.55 Modification Application MOD2019/0226 for modifications to modify Development Consent No. DA2013/0587 (‘the boarding house consent’) granted for the construction of a boarding house at Lot 2506 Bundaleer Street, Belrose (‘the site’) by installing kitchens, sliding glazed doors and fenced areas of private open space ranging from 8.8m² to 9.1m² on the northern elevation to the four (4) approved basement units is approved subject to the conditions set out in Annexure A and the consolidated conditions of consent set out in Annexure B.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (61539, pdf)

Annexure B (412971, pdf)

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Decision last updated: 03 September 2020