Land and Environment Court New South Wales Medium Neutral Citation: Supertramp Pty Limited v Northern Beaches Council [2021] NSWLEC 1575 Hearing dates: Conciliation conference on 24 September 2021 Date of orders: 5 October 2021 Decision date: 05 October 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) Modification Application No. Mod2021/0226 for the reconfiguration of the basement car parking to accommodate 38 car parking spaces including 1 carshare car parking space, at 11 May Road and 613-615 Pittwater Road, Dee Why, is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – modify basement car park of an approved boarding house development Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, s 4.55 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 Pt 2 Div 3 Warringah Local Environmental Plan 2011 Cases Cited: Leech Harmon Architects v Northern Beaches Council [2020] NSWLEC 1032 Category: Principal judgment Parties: Supertramp Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2021/101945 Publication restriction: No Judgment 1. COMMISSIONER: This is an application pursuant to the provisions of ss 4.55(8) and 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 18/1166 (Modification Application No. Mod2021/0226) to reconfigure the basement car park to accommodate 38 car parking spaces, including 1 carshare car parking space, (the proposal) at 11 May Road and 613-615 Pittwater Road, Dee Why (the site). 2. The Northern Beaches Council (the Council) lodged an amended modification application on the NSW planning portal on 15 September 2021 and the amended proposal was filed with the Court on 16 September 2021. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 September 2021. I 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. 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. 6. The site is zoned R2 Low Density Residential pursuant to the Warringah Local Environmental Plan 2011 (LEP 2011). The development application was made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), Part 2, New affordable rental housing, Division 3, Boarding Houses. 7. There are preconditions to the exercise of power to modify the development consent for the proposal pursuant to s 4.55(2) of the EPA Act. Background 1. On 22 January 2020 consent was granted to DA 18/1166 for the demolition of all existing structures and the construction of five 2-storey buildings over a split level basement carpark, containing 80 boarding rooms, including 5 managers' rooms, with associated access, communal areas and landscaping works, at 11 May Street and 613-615 Pittwater Road, Dee Why (Leech Harmon Architects v Northern Beaches Council [2020] NSWLEC 1032). 2. The basement of the approved development contained 47 car parking spaces, 21 motorcycle parking spaces and 66 bicycle spaces. The modification application (as amended) 1. The parties agreed that the following changes to the approved development are included in the modification application (as amended) and made the following agreed submissions: "Qualitatively: (a) The extent of excavation has been reduced through removal of car spaces and alteration of the lower carpark level from RL42.8 to RL42.9; (b) The configuration of the basement has been changed in relation to the location and number of car, motorcycle & bicycle spaces and the location of the car lift and bin rooms. (c) A dedicated carshare space has been provided with a dedicated car share vehicle; (d) A new bin path has been added to facilitate the movement of bins to the May Road frontage. (e) The Development is otherwise qualitatively unchanged. Quantitatively; (a) The volume of excavation has decreased; (b) The number of car spaces is decreased from 47 to 38 however a car share space and car share vehicle is now provided; (c) The number of bicycle spaces has decreased from 66 to 21 and the number of motorcycle spaces have decreased from 21 to 17. (d) The Development is quantitatively otherwise unchanged. The changes to the approved development relate primarily to the extent and configuration of the basement car parking and the bin rooms and access. Condition 10 of the development consent required the reconfiguration of the bin rooms and access and the modification application give effect to the condition. As the basement is below ground the modification will be physically imperceptible, other than the new bin path to May Road, the modifications do not result in any unacceptable or different impacts when compared to the development consent. Although there has been a reduction in car parking, motorcycle parking and bicycle parking spaces, the reduced quantum is consistent with the "do not refuse" requirements in cl 29(2)(3) of SEPP ARH. The introduction of the car share is a positive contribution towards sustainability, having regard to the proximity of the site to the frequent bus services along Pittwater Road with bus stops close to the site." 1. I accept the agreed submissions of the parties and on the basis of those submissions, I am satisfied that the modified development is substantially the same development as the development for which consent was granted, pursuant to s 4.55(2)(a) of the EPA Act. 2. The modification application was notified in accordance with the Council's policy from 4 May to 18 May 2021. I presided over a conciliation conference held on 8 June 2021 and the resident objectors gave evidence on site at the commencement of the conciliation conference. I accept the Council's submission that the issues raised by the resident objectors have been taken into account and, where appropriate, incorporated in the amendments made to the proposal. Orders 1. The Court notes: 1. That Northern Beaches Council as the relevant consent authority agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Modification Application Mod2021/0226. 2. That Northern Beaches Council lodged the amended modification application on the NSW planning portal on 15 September 2021. 3. The applicant filed the amended modification application with the Court on 16 September 2021. 1. The orders of the Court are: 1. Modification Application No. Mod2021/0226 for the reconfiguration of the basement car parking to accommodate 38 car parking spaces including 1 carshare car parking space, at 11 May Road and 613-615 Pittwater Road, Dee Why, is approved, subject to the consolidated conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (313318, pdf) Plan of Management (182404, pdf) ********** Amendments 01 October 2021 - sentence deleted from par [5] - "The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application." 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: 05 October 2021