Land and Environment Court New South Wales Medium Neutral Citation: Beamstone Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1493 Hearing dates: Conciliation conference 01 October 2020 Date of orders: 15 October 2020 Decision date: 15 October 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders: (1) The Applicant is granted leave to amend the modification application and rely on the following documents: (a) Plan of subdivision of Lots 10 and 11 DP 1202660 as received by the Council on 30 September 2020; (b) Bushfire Fuel Management Plan (Lot 100) prepared by Travers Bushfire and Ecology dated 18 September 2020; and (c) Vegetation Management Plan prepared by Cumberland Ecology (report NO.2013RPI) dated 15 September 2020. (2) The appeal is upheld. (3) Modification application MA19/0221 lodged on 23 July 2019 is approved subject to the conditions set out in Annexure "A". Catchwords: MODIFICATION – subdivision – reconfiguration of lots – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 Category: Principal judgment Parties: Beamstone Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: T To (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/47199 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 refusal by the Respondent of an application to modify Development Consent DA 08/0352 (the consent) (MA19/0221) by reconfiguring the proposed lots at Lots 10 and 11 Deposited Plan 1202660 known as 36 Sproule Road and 1 Waverley Place Illawong, respectively (the site). 2. The consent provided for the subdivision of land to create 11 lots. The site is zoned partly E2 Environmental Conservation and partly zoned E4 Environmental Living pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). The amendment is to increase the size of proposed Lot 11 and decrease the size of proposed Lot 10, the effect of which is to create an additional dwelling entitlement. 3. On 1 October 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 4. At the conciliation conference, the parties reached an 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 to permit the rearrangement of the lot layout. 5. On 1 October 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 6. Pursuant to s 34(3) of the Court 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. 7. The parties' agreement involves the Court exercising the function under s 4.55 of the EP&A Act to grant the application to modify the development consent. 8. Section 4.55(2)(a) of the EP&A Act requires that I must be satisfied that the modified development "is substantially the same development" as the originally approved development (Preston J in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [19]). The comparison to be made is between the approved development and that as proposed to be modified. The quantitative and qualitative changes must be identified, then compared and evaluated (Arrage at [14]). The modified development must be essentially or materially the same, and the nature of the development must remain the same. 9. As to quantitative matters, the parties have stated: 1. there is no change to the number of lots that are approved, only a boundary change; 2. the proposed modification does not seek any additional building envelope in the proposed Lot 101 (as the new dwelling would be contained in the envelope that was originally approved); 3. all but two of the approved lots are completely unaffected; and 4. no change is proposed to various subdivision instruments originally required by the consent, such as easements for fire trails, rights of way, etc; and therefore the proposal as modified is substantially the same in a quantitative sense. 1. As to the qualitative comparison, the parties have stated: 1. nothing in the assessment report reveals that there was anything particularly significant (to the original decision to grant the consent) in the precise boundary between Lot 10 and Lot 11; and 2. the original consent plainly did not approve the construction or use of dwellings, so any change to the number of future potential dwellings is not a change to the 'development' at all (it is merely a change to a potential consequence of the development); and therefore the proposal as modified is substantially the same in a qualitative sense. 1. For the reasons provided by the parties I am satisfied that the modified development is substantially the same development as the originally approved development in accordance with s 4.55(2)(a) of the EP&A Act. 2. There is a minimum lot size for subdivision prescribed by cl 4.1 of SSLEP 2015. That provision applies to an application for development consent, and does not apply to an application for modification of an already granted consent: (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 at [480]-[481]). Approval to the modification is therefore not prohibited by cl 4.1 of SSLEP 2015. 3. Having considered the material provided to the Court I am 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. 4. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 5. 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 EP&A Act. 6. The Court orders: 1. The Applicant is granted leave to amend the modification application and rely on the following documents: 1. Plan of subdivision of Lots 10 and 11 DP 1202660 as received by the Council on 30 September 2020; 2. Bushfire Fuel Management Plan (Lot 100) prepared by Travers Bushfire and Ecology dated 18 September 2020; and 3. Vegetation Management Plan prepared by Cumberland Ecology (report NO.2013RPI) dated 15 September 2020. 1. The appeal is upheld. 2. Modification application MA19/0221 lodged on 23 July 2019 is approved subject to the conditions set out in Annexure "A". ………………………… P Clay Acting Commissioner of the Court Annexure A (292292, pdf) Plan (191808, 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: 15 October 2020