Land and Environment Court New South Wales Medium Neutral Citation: 16 Cope St Pty Ltd v Council of the City of Sydney [2021] NSWLEC 1624 Hearing dates: Conciliation conference on 16, 20 and 26 August 2021 Date of orders: 20 October 2021 Decision date: 20 October 2021 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. D/2018/452 is modified in the terms in "Annexure B". (3) Development Consent No. D/2018/452/B as modified by the Court is "Annexure C". (4) The Respondent is to register the Court's Judgment in this matter on the NSW Planning Portal within 14 days from the date of Judgment. Catchwords: MODIFICATION APPLICATION – Boarding house development modification of development application – agreement between the parties – conciliation conference – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Sydney Local Environmental Plan 2012, cll 4.4, 6.21 Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Category: Principal judgment Parties: 16 Cope St Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) File Number(s): 2021/80650 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a modification application brought before the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify development consent D/2018/452 so as to delete the basement and reconfigure the ground floor and stair access to the approved boarding house at 16-24 Cope Street, Redfern on Lot 1 in DP 86495 and Lot 1 in DP 904899 (the site). 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 16 August 2021. I presided over the conciliation conference. 3. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, subject to amended documents for which an adjournment was granted. This decision involved agreement by the Council as the consent authority to amendments under cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), and the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 August 2021. A further signed agreement was filed on 12 October 2021 consistent with the standard orders of modification consents published on the Court's website. 5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement. 6. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons: 1. Firstly, I am satisfied that the development, as modified, will be substantially the same as that for which consent was granted, in accordance with s 4.55 of the EPA Act. 2. The site is located within the B4 Mixed Use zone identified in the Sydney Local Environmental Plan 2012 (SLEP). The proposed use is defined as boarding house development and is permissible with consent in the B4 zone. The objectives of the B4 zone are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure uses support the viability of centres. 1. The development, as modified, achieves a floor space ratio (FSR) of 2.38:1, which exceeds the maximum permissible FSR of 2:25:1 when the provisions of the SLEP and State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) are considered. However, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], s 4.55(2) is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the SLEP does not apply to modification applications. 2. On the basis of the statement contained at p72 of the Amended Statement of Environmental Effects, prepared by Mersonn Pty Ltd dated June 2021, I am satisfied that the proposed development exhibits design excellence in accordance with subcl 6.21(4) of the SLEP. 3. The Affordable Housing SEPP, contains standards at cl 29 that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards. 4. I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP. 5. On the basis of Condition 64 of the agreed conditions of consent , I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No. 1195656M_02 dated 26 July 2021), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation. 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Orders 1. The Court notes that: 1. The Council of the City of Sydney, as the relevant consent authority has agreed, under clause 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the application for modification of the development consent D/2018/452/B which: 1. Centralised the driveway; 2. Deleted the adjacent faux facade to the driveway; 3. Deleted the proposed motorbike parking within the loading dock; 4. Enclosed the rear ground floor bike store; 5. Deleted the proposed rear privacy blades with individual window hoods; 6. Reinstated the approved front fence location to each ground floor boarding room; 7. Reinstated the approved upper level front setbacks; 8. Reconfigured the fourth floor communal open space; 9. Provided detail drawings, sun eye views and shadow diagrams; 10. Provided a BCA/NCC report, addressing accessibility; 11. Provided new landscape drawings; 12. Provided a new waste management plan; 13. Provided an addendum acoustic report; and 14. Corrected a range of drafting errors. a copy of which amended application has been lodged on the planning portal and is filed in these proceedings and which comprises the documents set out in Annexure "A". 1. The parties agree that the approved amendment to the modification application is minor. 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. D/2018/452 is modified in the terms in "Annexure B". 3. Development Consent No. D/2018/452/B as modified by the Court is "Annexure C". 4. The Respondent is to register the Court's Judgment in this matter on the NSW Planning Portal within 14 days from the date of Judgment. ………………….. T Horton Commissioner of the Court Annexure A (129617, pdf) Annexure B (192061, pdf) Annexure C (703483, 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: 20 October 2021