Warehouse on Park Pty Ltd v Inner West Council

[2023] NSWLEC 1439

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warehouse on Park Pty Ltd v Inner West Council [2023] NSWLEC 1439

Hearing dates:

Conciliation conference on 4 August 2023

Date of orders:

10 August 2023

Decision date:

10 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The application is granted.

(2) Development Consent DA2021/0001 for alterations and additions to an existing building and change of use to a residential flat building including 28 apartments, with parking and associated works at 17 Federation Street, Camperdown is modified in the terms set out in Annexure “A”.

(3) Development consent DA2021/0001 as modified by the Court is at Annexure “B”.

Catchwords:

APPLICATION – application to modify a development consent granted by the Court – residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 4.15

Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113

Land and Environment Court Act 1979, s 34

Cases Cited:

Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1095

Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1485

Category:

Principal judgment

Parties:

Warehouse on Park Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2022/00377206

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an application to the Court to modify the development consent granted by the Court in Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1095 for alterations and additions to an existing building and change of use to a residential flat building, which has already been previously modified by the Court in Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1485. The application seeks to modify the approved internal configuration and amalgamate units which reduces the number of residential units to 26, as well as to modify the materials, finishes, and roof profile. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 4 August 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement filed on 27 June 2023, and follows the approval by the respondent, as the consent authority as defined under the EPA Act, of an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendment is to the basement car park to ensure that the adaptable car parking space is compliant with applicable standards. The modification application otherwise remains as described in the Section 4.55 Planning Report dated 1 December 2022.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. 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 the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modified development maintains the proposed use and residential floor area, with no changes to the building envelope except for the roof form. The proposed modification to the internal configuration, unit numbers and unit mix, do not change any essential element or result in any change to the type or size of the development.

5. The modification application was notified by the respondent between 11 January and 3 February 2023 in accordance with s 4.55(2)(c) of the EPA Act. There were no submissions received in response to the notification of the application.

6. Consistent with the requirements of s 100(3)(a) of EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 24 May 2023.

7. As required by s 102(2) of the EPA Regulation 2021, the modification application is accompanied by a design verification statement dated 18 November 2022, which verifies that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development.

8. 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)).

9. 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.

10. The Court orders that:

1. The application is granted.

2. Development Consent DA2021/0001 for alterations and additions to an existing building and change of use to a residential flat building including 28 apartments, with parking and associated works at 17 Federation Street, Camperdown is modified in the terms set out in Annexure “A”.

3. Development consent DA2021/0001 as modified by the Court is at Annexure “B”.

J Gray

Commissioner of the Court

Annexure A

Annexure B

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