Land and Environment Court New South Wales Medium Neutral Citation: M.R.R Property Investments Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1318 Hearing dates: Conciliation conference on 27 May 2020 and 18 June 2020 Date of orders: 23 July 2020 Decision date: 23 July 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 5 in Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the respondent's costs thrown away in the agreed amount of $2,000. (3) The appeal is upheld. (4) The Modification application to modify DA Consent DA-121/2018 for the demolition of existing structures and construction of multi-dwelling housing is approved subject to the conditions in Annexure A. Catchwords: S 4.56 MODIFICATION APPLICATION – multi dwelling housing – affordable housing – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: M.R.R Property Investments Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2019/302841 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Canterbury-Bankstown Council (Council) of the application to modify a development consent reference DA121/2018/A (the Modification Application). In exercising the functions of consent authority the Court has the power to determine the development application pursuant to s 4.56 of the EPA Act. 2. The Modification Application relates to three allotments of land with a combined area of 2486.3m2 identified as Lot 422 in DP 15383, Lot 421 in DP 15383 and Lot 420 in DP 15383 at 90 – 94 Stoddart Street, Roselands (the site). The site is located within the Zone R3 Medium Density Residential (Zone R3) under the provisions of Canterbury Local Environmental Plan 2012 (CLEP 2012). 3. The Modification Application, as originally submitted to Council on 28 March 2019, sought consent for various design changes to the multi-dwelling housing development the subject of a development consent to DA-121/2018 issued by the Land and Environment Court on 31 January 2019 (the Approved DA). The consent granted by the Court was made pursuant to orders consistent with an agreement reached under the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act) (M.R.R Property Investments Pty Ltd v Canterbury-Bankstown Council (2019) NSWLEC 1030). 4. The Modification Application was notified by Council from 12 April 2019 to 10 May 2019. One submission was received. 5. The Approved DA related to architectural plans prepared by Bechara Chan & Associates dated 17 December 2018 revision G (Revision G plans) as listed in the table to Condition 5 of the consent. The approved development was for the demolition of existing structures and construction of 16 'town house' type dwellings over four buildings with a shared single basement level with parking for 24 cars and 6 bicycles. The two buildings facing Stoddart Street contained a total of 7 two-storey town houses; the north-west building containing 3 town houses and the south-west containing 4 town houses. The remaining two buildings located towards the rear of the site were partially two-storey town houses and partially single-storey town houses with upper level habitable "attic" rooms in the roof. 6. The four dwellings with "attics" in the Approved DA were all located in the rear two-thirds of the site. Two of these (T11 and T15) were nominated as "Affordable Adaptable" units and one (T16) as an "Affordable" unit under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 7. The Modification Application as submitted to Council in March 2019 is based on architectural plans, also prepared by Bechara Chan & Associates and also dated 17 December 2018, albeit described as "Revision H Issued for s 4.55" (Revision H plans). The Modification Application includes a number of changes to the Approved DA, as described in the Statement of Facts and Contentions (SOFC) filed with the Court on 26 November 2019. The main changes between the approved Revision G plans and the submitted Modification Application Revision H plans occur to the upper level of the town houses and can be summarised as: 1. The total gross floor area (GFA) of the development has increased by 93.14m2 to 1754.75m2. This is largely as a result to design changes to the upper levels of the rear town houses, primarily T11, T12, T14, T15 and T16. 2. The upper level of T11 changes from one bedroom and bathroom, to three bedrooms and bathroom, with the "attic" largely replaced by a second storey. The GFA of the upper level increases from 18.88m2 to 34.12m2. 3. The upper level of T12 changes from one upper level "attic" bedroom and toilet, to two bedrooms and one bathroom within an "attic". The GFA of the "attic" increases from 15.47m2 to 32.93m2. 4. The upper level layout of T15 changes from one upper level "attic" bedroom and bathroom to two bedrooms and one bathroom with the "attic" largely replaced by a second storey. The GFA of the upper level increases from 21.3m2 to 34.12m2. 5. The upper level layout of T16 changes from three upper level "attic" bedrooms, study area and bathroom to two bedrooms, study area and bathroom. The GFA of the "attic" decreases from 57.8m2 to 50.54m2. 6. The upper level layout of T14 changes from two bedrooms and one bathroom, to four bedrooms and one bathroom. The GFA of the upper level increases from 36.05m2 to 62.69m2. 7. There was also a marginal increase in the size of the basement to accommodate additional storage area, with the amount of parking remaining the same. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 May and 18 June 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy, (March 2020) restrictions in place at the time there was no site inspection as part of the conciliation conference. 2. As a result of the discussions at the conciliation conference on 27 May 2020, and subsequently, amended plans prepared by Bechara Chan & Associates dated 28 May 2020 and noted as "Revision K Amended for s 34" (Revision K plans) were submitted to Council and formed the basis of the s 34 agreement that was filed with the Court on 25 June 2020. 3. The main changes between the modification as originally submitted to Council in March 2019 (the Revision H plans) and the modification the subject of the s 34 agreement (the Revision K plans) are: 1. The upper level layout of T11 changes slightly to increase the northern side boundary setback, reconfigure the bathroom and introduce a dormer window to one of the north facing bedrooms. 2. The upper level layout of T14 changes from four bedrooms and one bathroom to three bedrooms, one study and bathroom. The GFA of the upper level decreases from 62.69m2 to 55.6 m2 . 3. A dormer window in one of the bedrooms in T12 was relocated. 1. 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 DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. Satisfaction of jurisdiction 1. The principal jurisdictional matter relates to the terms of s 4.56(1)(a) of the EPA Act to modify a consent. This provision of the EPA Act requires the Court, as the consent authority, to be satisfied that the development as modified would be 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). I have considered this and am duly satisfied that it is substantially the same development because the changes are not substantive in a quantitative or a qualitative sense, and the potential changes to the impacts of the development are acceptable. 2. In relation to the CLEP 2012, the parties have advised there are no jurisdictional matters arising. The Modification Application relates to development that is permissible with consent in the Zone R3. 3. The Modification Application does not materially change the affordable housing provided by the development and therefore there are no issues arising with respect to the SEPP ARH. 4. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised Certificate number 910431M_02 dated 01 June 2020 has been provided demonstrating compliance with the BASIX SEPP. 5. 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. 6. The Court orders: 1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 5 in Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the respondent's costs thrown away in the agreed amount of $2,000. 3. The appeal is upheld. 4. The Modification application to modify DA Consent DA-121/2018 for the demolition of existing structures and construction of multi-dwelling housing is approved subject to the conditions in Annexure A. …………………… J Bindon Acting Commissioner of the Court Annexure A (127055, pdf) Issue K Plans (13494686, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2020