X-Sealant Pty Ltd v Burwood Council

[2024] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

X-Sealant Pty Ltd v Burwood Council [2024] NSWLEC 1452

Hearing dates:

Conciliation conference 27 May 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the amended development application as listed at [7] in the judgment.

(2) The appeal is upheld.

(3) Development consent No. 10.2017.124.1 is modified in the terms in Annexure A by the approval of Modification Application 10.2017.124.6.

(4) Development consent No. DA10.2017.124.1 for demolition of existing structures and construction of a part 6 and part 10 storey mixed use development containing 125 apartments, one retail premises at ground floor and three levels of basement at 68-72 Railway Parade and 2-10 Oxford Street Burwood, as modified by the Court, is at Annexure B.

Catchwords:

MODIFICATION APPLICATION – Amendments to the design of the communal open space at the uppermost level – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9,

Land and Environment Court Act, s 34

Burwood Local Environment Plan 2012

Environmental Planning and Assessment Regulation 2021, cll 98, 99, 100

State Environmental Planning Policy (Housing) 2021, Schs 7A, 9

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433

Category:

Principal judgment

Parties:

X-Sealant Pty Ltd (Applicant)
Burwood Council (Respondent)

Representation:

Counsel:
M Fozzard (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Bilias and Associates (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/78594

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify development consent, DA/10.2017.124.1. That consent approved the demolition of existing structures and construction of a part 6 and part 10 storey mixed use development containing: 125 apartments, one ground floor retail premises and three levels of basement parking. The works are proposed at 68-72 Railway Parade and 2-10 Oxford Street Burwood. The modification application, MOD.10.2017.124.6 seeks consent for the following modifications:

• For the use and occupation of the concrete roof structure above the southern portion of communal open space Level 6 with skylight above,

• removal of the operable louvres to the external openings of the approved communal BBQ area,

• conversion of landscaped planter box area at southeastern corner of Level 6 to provide a new raised deck with balustrading and raised seating along edges of deck,

• use and occupation of existing pergola at north-western portion of Level 6 adjacent to approved penthouse living/dining area,

• new skylights above.

2. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(1A) of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. 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 27 May 2024. The conciliation conference was adjourned to provide the parties time to give effect to their agreement in principle. On 3 June 2024, leave was granted to the Applicant to amend their modification application. Those amendments have resolved the remaining contentions between the parties. The decision agreed upon is for the grant of consent to the modification application, as amended, subject to conditions, pursuant to s 4.55(1A) of the EPA Act. The agreement was entered into on 5 July 2024.

4. 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:

1. The modification application was lodged by the Applicant who is the owner of the Land (cl 98 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)). The modification application complies with cll 98, 99 and 100 of the EPA Regulation.

2. The modification application is made pursuant to s 4.55(1A) of the EPA Act. This provision has a number of conditions that need to be satisfied. The provision states:

(1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), 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 any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

3. The Parties agree, and I accept having reviewed the application and the statement of environment effects, that the modification is of minimal environmental impact. The scope of the works proposed do not increase the overall height of the building, the additional pergola and roof forms are well recessed and will be screened by approved landscaping. I find that the requirements of s 4.55(1A)(a) are met.

4. The second test at s 4.55(2) of the EPA Act is that the consent authority must be satisfied that the development, as modified, is substantially the same as the development to which consent was granted. The parties agree, and I accept that I can be satisfied, that the development to which the consent as modified relates is quantitatively and qualitatively substantially the same development as the development for which consent was originally granted. There is no ‘radical’ change to the massing or bulk/scale of the development. The changes to the architectural design and material do not substantially change the building footprint or massing. The number of storeys is maintained, and the modification application does not make transformative changes in the building height or gross floor area. I find that s 4.55(2)(a) of the EPA Act is satisfied.

5. There are no conditions which have been imposed as a requirement of a concurrence to the original consent or general terms of approval, and therefore no consultation is required under s 4.55(2)(b) of the EPA Act.

6. The modification application (as amended) was notified by the Respondent for 14 days until 3 July 2024. No submissions were received during the notification period. I find that subs 4.55(1A)(c) & (d) of the EPA Act are satisfied.

7. Under s 4.55(3) of the EPA Act the consent authority must also take into consideration two matters. Firstly, such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified.

8. With the assistance of the agreed jurisdictional note filed by the parties I conclude, none of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development, the subject of the application, preclude the approval of the Modification Application.

Burwood Local Environmental Plan 2012

5. The land is zoned R1 General Residential under Burwood Local Environmental Plan 2012 (BLEP 2012). The proposed modification is development for the purpose of "mixed use development" which is permissible with consent under in Zone R1 General Residential.

6. A maximum floor space ratio of 3:1 applies to the site pursuant to clause 4.4(2) of BLEP 2012. The development, as proposed to be modified, will have a floor space ratio of 3.08:1. Although the floor space ratio of the development as proposed to be modified will exceed the maximum FSR permitted pursuant to clause 4.4(2) of the LEP 2012, the Applicant is not required to apply for a variation request pursuant to clause 4.6 of the BLEP 2012 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, (1998) 97 LGERA 433). Further, the parties agree, and I accept, the proposed modification is consistent with floor space ratio objectives pursuant to cl 4.4 of the BLEP 2012.

State Environmental Planning Policy (Housing) 2021

7. On 14 December 2023, State Environmental Planning Policy No 65 was repealed and its provisions were consolidated into the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) and the Environmental Planning and Assessment Regulation 2021 pursuant to State Environmental Planning Policy Amendment (Housing) 2023. On 15 March 2024, State Environmental Planning Policy Amendment (Housing) 2024 came into force and inserted the following provision into Schedule 7A 'Savings and transitional provisions' of SEPP Housing:

8. (2A) Despite subsections (1) and (2), Chapter 4, as inserted by the amending policy, applies to a matter referred to in those subsections.

9. Pursuant to the provisions of Sch 7A, s 8(2A), Ch 4 applies to the modification application. As required pursuant to s 147 of the SEPP Housing I am satisfied that the proposed modified development demonstrates that adequate regard has been given to the design quality principles in Sch 9 of SEPP Housing and the objectives specified in the Apartment Design Guide for the relevant design criteria.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

10. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 came into force. Section 4.2 contains the following savings provision:

(1) This policy does not apply to the following-

…

(f) an application for modification of a development consent under the Act, section 4.55 or 4.56 submitted on the NSW planning portal on or after 1 October 2023, if the development application for the development consent was submitted on the NSW planning portal before 1 October 2023.

11. The Applicant has provided BASIX certificates for the proposed development, which satisfies the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

12. Finally, in determining the modification application I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Conclusion

13. Having reached the state of satisfaction that the decision is one that the Court can 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”. Section 34(3)(b) of the LEC Act also requires me to “set out in writing the terms of the decision”.

14. 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.

15. The Court notes that:

1. The Respondent, Burwood Council, as the relevant consent authority, has approved the amendment of Development Application No. DA10.2017.124.1 pursuant to s 37(1) of the EPA Regulation, in accordance with the following plans and documents:

1. Architectural Plans (Up to Rev H) prepared by Mackenzie Architects International:

#	Plan name	Rev	Date
A0004	Penthouse Floor Plan	H	13 May 2024
A0003	Site/Roof Plan	G	16 October 2023
A2001	West Elevation	C	13 May 2024
A2002	South Elevation	C	13 May 2024
A2101	Section A	B	16 October 2023

2. Owners consent to proposed modification dated 30 October 2023;

3. Cost Plan Letter dated 28 November 2023;

4. BASIX Certificate dated 9 November 2023;

5. NatHERs Certificate dated 31 October 2023;

6. Determination and Statement of Reasons dated 6 August 2018;

7. Statement of Environmental Effects dated 26 October 2023; and

8. Urban Design Review dated November 2023.

1. (collectively, the ‘Amended Development Application’)

2. The Applicant is not required to lodge the Amended Development Application on the NSW Planning Portal pursuant to section 38(4) of the EPA Regulation.

3. The Applicant filed the Amended Development Application with the Court on 3 June 2024.

Orders

16. The Court orders that:

1. The Applicant is granted leave to rely upon the amended development application as listed at [7] in the judgment.

2. The appeal is upheld.

3. Development consent No. 10.2017.124.1 is modified in the terms in Annexure A by the approval of Modification Application 10.2017.124.6.

4. Development consent No. DA10.2017.124.1 for demolition of existing structures and construction of a part 6 and part 10 storey mixed use development containing 125 apartments, one retail premises at ground floor and three levels of basement at 68-72 Railway Parade and 2-10 Oxford Street Burwood, as modified by the Court, is Annexure B.

……………………….

D Dickson

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 31 July 2024