Land and Environment Court New South Wales Medium Neutral Citation: 47 Boronia Street Pty Ltd v Georges River Council [2021] NSWLEC 1173 Hearing dates: Conciliation conference on 10 and 24 February 2021, and 2 and 9 March 2021 Date of orders: 12 April 2021 Decision date: 12 April 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 of the consolidated conditions of consent at annexure "A", including the architectural plans at annexure "B" and the landscape plans at annexure "C". (2) The appeal is upheld. (3) Development Consent DA2017/0579 for construction of a detached dual occupancy development at 47 Boronia Street, Kyle Bay is modified in accordance with Modification Application No. MOD2020/0131 pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 and subject to the consolidated conditions of consent at annexure "A". The development as modified includes boundary walls which sits partly upon land at 45 Boronia Street and 5 Cross Street, Kyle Bay. Catchwords: DEVELOPMENT APPEAL – modification of consent – dual occupancy – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Kogarah Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Cases Cited: Scrap Realty Pty Limited v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Texts Cited: Kogarah Development Control Plan 2013 Category: Principal judgment Parties: 47 Boronia Street Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: J Palmer (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Pikes and Verekers Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 2020/319489 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of an application to modify development consent - residential number Modification Application No. MOD2020/0131 to modify Development Consent DA2017/0579 for construction of a detached dual occupancy development (the Proposed Modification Application) at 47 Boronia Street, Kyle Bay (the Site). The development as modified includes boundary walls which sits partly upon adjacent land at 45 Boronia Street, Kyle Bay and 5 Cross Street, Kyle Bay. 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 10 and 24 February 2021, and 2 and 9 March 2021. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the Proposed Modification Application subject to conditions. 4. 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 development application. 5. The Proposed Modification Application was originally lodged pursuant to s 4.55(1A) of the EPA Act. The filed s34 Agreement includes an order for leave to amend the Proposed Modification Application and the parties agree that the amended Proposed Modification Application should be assessed pursuant to s 4.55(2) of the EPA Act. 6. There are jurisdictional prerequisites that must be satisfied before the Court's function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent, and an agreed Jurisdictional Note was filed on 11 March 2021. 7. As a preliminary jurisdictional prerequisite, the Court has been provided with written owners' consent from each of the owners of the adjoining land at 45 Boronia Street, Kyle Bay and at 5 Cross Street, Kyle Bay in accordance with the requirements of cl 115(1)(h) of the Environmental Planning and Assessment Regulation 2000 (the Regulation). I also note that in Scrap Realty Pty Limited v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 (Scrap Realty) at [13]-[21], Preston CJ confirmed that the modification power, under former s 96(2) of the EPA Act, allows for additional land to be incorporated as part of a modification application and I quote Preston CJ at [20] as follows: "20. The parties were not able to find any judicial authority which has held that the power to modify development consents does not include the power to alter the land to which a consent applies so as to permit the carrying out of development approved by the consent on land additional to the land to which the consent as originally granted applied. The power to modify consents has been in force since 1979 when the Environmental Planning and Assessment Act was enacted. As I have earlier noted, the power was enlarged in 1985. The fact that no judicial authority exists establishing that modification of a consent cannot include the addition of land to the land to which the consent as originally granted applied is, perhaps, corroborative that such a narrow construction of the power in s 96 is not to be preferred." 1. The parties explained how the jurisdictional prerequisites of s 4.55(2) and (3) of the EPA Act have been satisfied and I will deal with these in turn below. Is the Proposed Modification Application substantially the same development as the original development consent? 1. The Court, as consent authority, may modify the consent if it is satisfied that the development to which the consent as modified relates is 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) (s 4.55(2)(a) EPA Act). 2. The power to modify a consent is a power "to alter without radical transformation" the consent (Scrap Realty). The result of the comparison between the original development consent and the Proposed Modification Application must be a finding that the development is "essentially" or "materially" the same as the approved development consent (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); and Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8). Both a qualitative and quantitative comparison is required (Moto). 3. The parties explained that the Proposed Modification Application results in a development which is substantially the same as originally approved because the proposed modification: 1. Maintains the proposed use, approved height and general envelope of the proposed dual occupancy; 2. Maintains the number of dwellings, number of bedrooms and the number of car spaces; 3. Although there will be minor changes in the proposed gross floor area and basement footprint, the changes will not be apparent in the streetscape and amenity impacts upon neighbouring properties have been substantially mitigated. 1. Having inspected the Site at the commencement of the conciliation conference and after considering the amended plans I am satisfied with and adopt the explanation provided by the parties and I find that the Proposed Modification Application is substantially the same as the originally approved development consent. Consultation/Concurrence – s 4.55(2)(b) of the EPA Act 1. There were no conditions imposed on the original Development Consent as a result of concurrence requirements and I am satisfied that there is no impediment to granting the approval pursuant to s 4.55(2)(b) of the EPA Act. Notification – s 4.55(2)(c) and (d) 1. The Proposed Modification Application was notified in accordance with the Regulation and the Kogarah Development Control Plan 2013 from 27 July 2020 to 3 August 2020, and again from 12 October 2020 to 26 October 2020. 2. The adjoining land owners addressed the Court on site at the commencement of the conciliation conference and provided written submissions. The Respondent's lawyers have continued to communicate with the adjoining owners through the negotiations during the conciliation conference with the consent of the Applicant to do so. 3. I am satisfied that the concerns raised by the adjoining land owners have been taken into account and that the amended Proposed Modification Application together with the proposed conditions of consent respond appropriately to those concerns which in part is evidence by their respective written consent to undertake work on their land. Consideration of relevant matters referred to in s 4.15(1) 1. The Proposed Modification Application is characterised as a dual occupancy development which is permissible with consent in accordance with the Land Use Table relating to Zone R2 Low Density Residential in Kogarah Local Environmental Plan 2012 (KLEP) and that the proposed use is compatible with the objectives of the R2 zone. I am also satisfied that the objectives of the floor space ratio development standard pursuant to cl 4.4 of the KLEP has been adequately taken into consideration. BASIX 1. On 16 March 2021 an amended BASIX Certificate was filed with the Court satisfying the requirement of cl 115(6) of the Regulation and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 2. 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 LEC Act. 3. 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. 4. The Court orders: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 of the consolidated conditions of consent at annexure "A", including the architectural plans at annexure "B" and the landscape plans at annexure "C". 2. The appeal is upheld. 3. Development Consent DA2017/0579 for construction of a detached dual occupancy development at 47 Boronia Street, Kyle Bay is modified in accordance with Modification Application No. MOD2020/0131 pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 and subject to the consolidated conditions of consent at annexure "A". The development as modified includes boundary walls which sits partly upon land at 45 Boronia Street and 5 Cross Street, Kyle Bay. ………………………. E Espinosa Commissioner of the Court. Annexure A (812478, pdf) Annexure B (3896273, pdf) Annexure C (6956567, 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: 12 April 2021