Moini Pty Limited v The Council of the City of Sydney [2021] NSWLEC 1542

Land and Environment Court New South Wales

Medium Neutral Citation: Moini Pty Limited v The Council of the City of Sydney [2021] NSWLEC 1542 Hearing dates: Conciliation conference on 30 July 2021 Date of orders: 21 September 2021 Decision date: 21 September 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [23] below. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s 34 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 Category: Principal judgment Parties: Moini Pty Limited (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: E Whitney (Solicitor) (Applicant) A Singh (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) The Council of the City of Sydney (Respondent) File Number(s): 2021/63571 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings arise following the applicant's Class 1 appeal to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal of Modification Application No. DA2018/649/A by the Council of the City of Sydney (Council). 2. The application seeks consent to amend Development Consent No. DA 2018/649 which approved the demolition of two existing dwellings and structures and the construction of a boarding house at 13-15 Ross Street, Forest Lodge NSW 2037 to permit reconfiguration of the internal layout of the approved boarding house and increase the number of boarding rooms from 20 to 25 (modification application). 3. On 30 July 2021, the parties participated in a s34 conference before me which was adjourned to allow the applicant time to prepare a suite of amended plans and materials in response to the Council's Statement of Facts and Contentions and the discussions had at the s34 conference. 4. Broadly, the changes to the application included the following: * Update the size and treatment of the booster cabinet and the subsequent reduction in bicycle spaces. * Increase the size of the window to 1800mm in room 3. * Remove the solid walls of the balconies on the top floor level and replace with battons (to make similar to the treatment on the ground floor). * Note the cladding as being standing seam not mini orb on the materials schedule; and clarify the treatment to the rear boundary, including the movement of the timber paling fence on top of the retaining wall to the actual boundary (on both the architectural and landscape plans) and incorporate landscaping over the retaining wall (amended application). 1. Having reviewed the amendments, the Council now accepts that the amended plans and additional information has resolved all of the Council's contentions raised in its Statement of Facts and Contentions filed on 12 April 2021. 2. On 20 August 2021, the Council agreed in accordance with cl 121B of the Environmental Planning and Assessment Regulation 2000 to the applicant uploading the amended application to the NSW planning portal. 3. On 25 August 2021, the applicant filed the amended application with the Court. 4. On 14 September 2021, the parties filed an executed s34 agreement setting out the terms of the decision that would be acceptable to them. 5. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. In this case, the parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the modification application on a conditional basis. 6. Before this function can be exercised, there are jurisdictional prerequisites that must be satisfied. The parties addressed the jurisdictional prerequisites they considered relevant in a lengthy jurisdictional submission (Annexure D). Much of that submission was irrelevant to the narrower focus of matters which I must consider for the purpose of exercising the power to grant consent under s 4.55(2). There is simply no requirement to reassess matters of jurisdiction pertaining to the grant of the original consent such as permissibility or compliance with development standards for height or FSR which are not called up by a modification application. As was explained at [54] in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, there are in fact four powers to modify a development consent, three conferred by s 4.55(1), (1A) and (2) and one conferred by s 4.56(1). It was emphasised at [55] that the constraints on the exercise of the four powers vary between the powers and define the type of modification that can be affected by exercise of the powers. 7. In this instance, the modification sought is made pursuant to s 4.55(2) of the EPA Act. 8. Specifically, before the power in s 4.55(2) can be exercised, the consent authority must publicly notify the proposed modifications and consider any submissions made concerning the proposed modification (s 4.55(2)(c) and (d)). Understandably, the public are interested in changes to the development that might result from the modification of the development consent, not mere changes in the terms of the development consent that do not effect any change in the development. 9. Next, there must be a consideration of the extent of the changes - which are constrained by s 4.55(2)(a) "to require the development to which the consent as modified relates being substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified". 10. Subsection 4.55(3) then requires a consideration of the matters under s 4.15 relevant to the aspects of the development to which the modification application relates. The limitations of this discretion are defined by the matters raised for consideration by the application: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]; and include a consideration of the reasons given by the consent authority for the grant of the consent that is sought to be modified. 11. To the extent that the requirements in s 4.55(2) concern a consideration of the merits of the application s 34(3) precludes me from undertaking a merit assessment. Provided the decision agreed is within power, I must dispose of the proceedings in accordance with the parties' decision. 12. With that in mind, I accept that the following relevant jurisdictional prerequisites have been met: