Land and Environment Court New South Wales Medium Neutral Citation: LBEB Pty Ltd ACN (127 486 462) v Inner West Council [2020] NSWLEC 1344 Hearing dates: Conciliation conference 22 July 2020 Date of orders: 04 August 2020 Decision date: 04 August 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [13] below Catchwords: MODIFICATION – childcare centre – modification of layout with no increase in numbers – minor changes to building – conciliation conference – agreement between the parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: LBEB Pty Ltd ACN 127486462 (Applicant) Inner West Council (Respondent) Representation: Counsel: A Seton (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Applicant) Inner West Council (Respondent) File Number(s): 2019/367840 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the decision of the Respondent to in relation to the application to modify Development Consent D/2015/139 (consent) originally granted on 10 November 2015 for alterations and additions to an existing building and change of use to a 90 place child care centre on the land at 73-75 Beattie Street, Balmain (the site). 2. The modification sought internal and external alterations to the building and alterations to a number of conditions. There is no change proposed to the number of children. 3. The Respondent granted the application in part on 19 December 2019 and issued a Notice of Determination on 8 January 2019. The applicant is dissatisfied with that determination. 4. On 30 June 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act). 5. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the modification application and to modify the development consent in the manner described below. 6. On 28 July 2020 the parties lodged an agreement pursuant to s 34 of the Court Act. 7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 8. The parties' agreement involves the Court exercising the function under s 4.56 of the EP&A Act to grant the application to modify the development consent. 9. The following matters of jurisdiction are noted: Environmental Planning and Assessment Act 1979 1. S4.56(1)(a) – the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. 2. Notification requirements under the Environmental Planning and Assessment Act 1979 have been satisfied, all submissions have been taken into consideration and Owner's consent has been provided. 3. The matters referred to in section 4.15(1) as are of relevance to the development the subject of the application have been taken into consideration. Ashfield Local Environmental Plan 2013 1. Land Use Table - the land is zoned R1 General Residential Zone. The proposed development is permissible with consent. 2. The modification application does not seek to vary any development standards and does not result in any non-compliance with the relevant legislation. State Environmental Planning Policy No 55—Remediation of Land 1. As abovementioned, the modification application amends an approved development. 2. There are no changes that would impact the original consent. 3. The original conditions of consent include conditions regarding the remediation of land which are retained in the modified consent (Condition 68). 1. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. 2. 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. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 s 4.15 of the EPA Act. 4. The Court orders: 1. The applicant is granted leave to amend the modification application to rely on the following plans: Plan Reference Drawn By Dated Cover Sheet – C001/C 4D Architecture & Design 1/6/2020 Site Plan – A001/ C 4D Architecture & Design 1/6/2020 Basement floor plan A002/ C 4D Architecture & Design 1/6/2020 Ground floor plan A003/ C 4D Architecture & Design 1/6/2020 Level 1 plan A004/ C 4D Architecture & Design 1/6/2020 Level 2 plan A005/ C 4D Architecture & Design 1/6/2020 West/South Elevations A010/ C 4D Architecture & Design 1/6/2020 East/North Elevations A011/ C 4D Architecture & Design 1/6/2020 Sections A020/ C 4D Architecture & Design 1/6/2020 Sections A021/ C 4D Architecture & Design 1/6/2020 Finishes Schedule A050 4D Architecture & Design 23/07/2020 Coloured Elevations West/South Elevations A010/C and East/North Elevations A011/C 4D Architecture & Design 1/6/2020 S3.1 Rev D Basement Slab & Footing Plan & Details Structure Consulting Engineers 11.06.20 S4.1 Rev C Ground & Upper Ground Floor Slab Plan Structure Consulting Engineers 11.06.20 S5.1 Rev C Level 1 Floor Slab Plan Structure Consulting Engineers 24.06.20 S6.1 Rev C Level 2 & Upper Roof Framing Plan Structure Consulting Engineers 24.06.20 S6.2 Rev C Level 2 & Upper Roof Sections & Details Structure Consulting Engineers 24.06.20 Structural Statement – Gridline H Wall Demolition Structure Consulting Engineers 29 June 2020 Structural Statement – Steal Beam Strengthening Structure Consulting Engineers 22 July 2020 Conservation Management Site Induction Statement 4D Architecture & Design 1 June 2020 Construction Risk Management Report, Rev A Structure Consulting Engineers 24/06/2020 1. The appeal is upheld. 2. Development Consent No. D/2015/139 originally granted on 10 November 2015 for alterations and additions to an existing building and change of use to a 90 place child care centre on the land at 73-75 Beattie Street, Balmain is modified pursuant to section 4.55(2) of the Environmental Planning and Assessment Act 1979 in accordance with the Notice of Determination issued by the Respondent on 19 December 2019 subject to the further amendments set out in Annexure A. 1. The Court notes that as a consequence of Order (3), Development Consent No. D/2015/139 is subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………… P Clay Acting Commissioner of the Court ANNEXURE A (141177, pdf) ANNEXURE B (433633, pdf) Plans (19664170, 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: 04 August 2020