Land and Environment Court New South Wales Medium Neutral Citation: Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248 Hearing dates: Conciliation conference on 13 and 27 April 2021 Date of orders: 14 May 2021 Decision date: 14 May 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 amended conditions at annexure "A". (2) The appeal is upheld. (3) Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street, Cronulla is approved. (4) Development consent DA18/0504 is modified in accordance with modification application MA20/0237 and is subject to the amended conditions at annexure "A". Catchwords: DEVELOPMENT APPEAL – modification of consent – substantially the same – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9 Land and Environment Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development State Environmental Planning Policy No. 55 – Remediation of Land Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, and 6.17 Environmental Planning and Assessment Regulation 2000, ss 115(3), 115(6) Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Texts Cited: Australian Design Guide, NSW Department of Planning and Environment, July 2015 Sutherland Shire Council Environmental Specification – Waste Collection for New Multi-Dwelling Housing and Residential Flat Buildings Sutherland Shire Development Control Plan 2015 Sutherland Shire Section 94 Development Contribution Plan 2016 Category: Principal judgment Parties: Parseh Cronulla Pty Ltd (First Applicant) Parallel Pty Ltd (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: J Reid (Applicants) M Staunton (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicants) HWL Ebsworth (Respondent) File Number(s): 2020/294311 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of an application to modify a development consent namely modification application No. MA20/0237 to modify development consent No. DA18/0504 which granted approval for the demolition of 2 apartment buildings and the construction of a 5 storey residential flat building by increasing the gross floor area of the building, changes to the carparking, internal layouts and landscaping (the Proposed Modified Development) at Lots 1 – 5 SP 11909 and Lots 1 – 6 SP 2948 located at 3-5 Parramatta Street Cronulla (the Site). 2. Hearing commenced on site and on the second day of the proceedings a conciliation conference was interposed pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 13 and 27 April 2021. I have presided over the conciliation conference. 4. 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 granting leave to rely on amended plans and documentation, upholding the appeal and approving the modification of the development consent subject to conditions. 5. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the requirements contained in s 4.55 of the EPA Act. The parties explained how the jurisdictional prerequisites of s 4.55 of the EPA Act have been satisfied in an agreed Jurisdictional Note which addresses the subsections s 4.55(2) and s 4.55(3) set out below as follows: 1. The relevant jurisdictional requirements are contained in ss 4.55(2)-(3) of the EPA Act, which provides as follows: (2) Other modifications 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 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), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, 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 the period prescribed by the regulations or provided by the development control plan, as the case may be. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. Section 4.55(2)(a): As to whether the modification substantially the same development as the development for which consent was originally granted, the power to modify a consent is a power "to alter without radical transformation" the consent (Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163). The result of the comparison between the original consent and consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Arrage v Inner West Council [2019] NSWLEC 85). Both a qualitative and quantitative comparison is required (Moto). 1. Qualitatively: 1. The proposed use as a residential flat building will not be altered; 2. The general envelope of the proposal is retained; 3. Although the architecture is different, the bulk and scale is substantially the same; 4. The impacts on neighbouring properties are substantially the same. 1. Quantitatively; 1. The overall height is the same; 2. The floor space ratio is increased from 1.5:1 to 1.6:1 (being a change of 6.6%); 3. The number of units is reduced from 25 to 18. However, the number of bedrooms increases from 46 to 53. Despite the change in unit mix, it is anticipated that the number of residents will be substantially the same; 4. The number of car spaces is increased from 42 to 44; 5. The area of the common open space is increased from 120m2 to 144m2; 6. The proposed setbacks and general articulation are the same; 7. The landscaped area reduced from 29% to 27%. 1. Following the above comparison, the parties are of the view that the proposed modification will result in substantially the same development. 1. Section 4.55(2)(b) Consultation/Concurrence: There were no conditions imposed on the Development Consent as a result of concurrence requirements. 2. Section 4.55(2)(c)-(d) Notification: The modification application was notified in accordance with the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and the Sutherland Shire Development Control Plan 2015 from 27 August-10 September 2020. Amended plans were notified from 4-26 March 2021. 1. The concerns raised by the adjoining owners have been taken into account and the parties have responded to those concerns in the amended plans and the conditions of consent. 1. Section 4.55(3): To the extent that it is applicable to a modification application, the parties agree that the development as modified will be characterised as a residential flat building which is permissible with consent in accordance with the Land Use Table relating to Zone R4 High Density Residential in Sutherland Shire Local Environmental Plan 2015 (SSLEP) and the proposed use is compatible with the objectives of the R4 zone. The parties have taken into consideration the objectives of the floor space ratio development standard pursuant to cl 4.4 of SSLEP. 1. The parties have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application, including: 1. State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development; 2. State Environmental Planning Policy No. 55 – Remediation of Land; 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 4. Sutherland Shire Local Environmental Plan 2015 (including cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, and 6.17) 5. Sutherland Shire Development Control Plan 2015; 6. Sutherland Shire Council Environmental Specification – Waste Collection for New Multi-Dwelling Housing and Residential Flat Buildings; 7. Sutherland Shire Section 94 Development Contribution Plan 2016. 1. The parties have also taken into consideration the reasons given by the Panel (of 4 June 2019) for the grant of the consent that is sought to be modified. 2. An amended BASIX certificate has been provided to the Court in accordance with the requirement of cl 115(6) of the EPA Regulation on 27 April 2021. 3. An updated Design Verification Statement has been provided to the Court in accordance with the requirement of cl 115(3) of the Regulation, filed 29 April 2021. 1. 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 and I adopt the comprehensive reasons provided by the parties as set out above in this judgment. 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 Court notes that the Applicant has agreed to pay the Respondent's costs thrown away in the sum of $12,500 within 28 days of the orders being made. 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 amended conditions at annexure "A". 2. The appeal is upheld. 3. Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street, Cronulla is approved. 4. Development consent DA18/0504 is modified in accordance with modification application MA20/0237 and is subject to the amended conditions at annexure "A". ………………………. E Espinosa Commissioner of the Court Annexure A (383132, pdf) Plans_1 (17271013, pdf) Plans_2 (5344541, 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: 14 May 2021