Land and Environment Court New South Wales Medium Neutral Citation: BR Building Service Pty Ltd v Strathfield Municipal Council [2021] NSWLEC 1652 Hearing dates: Conciliation conference on 14 October 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is upheld; (2) The application to modify development consent No. DA2020/004/2 in the terms set out in Annexure 'A' is approved; (3) The terms of the consolidated Development Consent No. DA2020/004 are set out in Annexure 'B'. 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, cll 55(1), 77 and Sch 1 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Strathfield Local Environmental Plan 2012, cll 2.3, 4.1A, 4.3, 4.4, 5.10, 6.1 and 6.4 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: BR Building Service Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) M Fozzard (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Bilias and Associates (Respondent) File Number(s): 2021/23986 Publication restriction: No Judgment 1. COMMISSIONER: BR Building Service Pty Ltd (the Applicant) has appealed the refusal by Strathfield Municipal Council (the Respondent) of its modification application (DA2020/004/2), made with owner's consent, seeking deletion of Condition 1 (the Proposed Modification) of development consent No DA2020/004 the (Approved Development) at 50 Noble Avenue, Strathfield (the Subject Site). 2. Condition 1 of the grant of consent was made in the following terms: "1. BASEMENT LEVEL (SC) The basement level and access to the basement is to be deleted. (Reason: Non-compliance with the Floor Space Ratio development standard contained within the Strathfield Local Environmental Plan 2012). MODIFIED DA020/04/01 09 April 2020" 1. The Subject Site is zoned R3 Medium Density Residential under cl 2.3 of Strathfield Local Environmental Plan 2012 (SLEP). The Approved Development as modified by the Proposed Modification would remain permissible with consent on the Subject Site which is not listed as either an item of environmental heritage or as being located within a heritage conservation area. 2. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.55 of the EP&A Act. 3. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 14 October 2021, and I presided over the conciliation conference. 4. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference. 5. 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 consent to the Applicant's development application, subject to conditions. 6. Under the terms of the agreement, the Applicant would amend the modification application by relying upon amended architectural plans prepared by BDA Designs, dated 13 October 2021, as well as drawing Nos 1/10, 2/9, 3/9, 6/9, and 8/9, which would provide for: 1. a reduced basement storage area to be achieved through the relocation of the southern external wall 3.2m to the north; 2. the basement area to be reduced by 21.452m2; 3. the floor to ceiling height within the basement level to be reduced from 2.3m to 2.2m. 1. 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. 2. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Modification, and those requirements have been satisfied as follows: 1. the subject modification application was made under s 4.55(2) of the EP&A Act, and: 1. the Court is not empowered to approve the development application unless: 1. as required under the provisions of s 4.55(2)(a), it is satisfied that the development as modified is substantially the same development as the development for which consent was originally granted; 2. as required under the provisions of s 4.55(2)(d), it has considered any submissions made concerning the Proposed Modification; 3. as required under the provisions of s 4.55(3), it has taken into consideration matters in s 4.15(1) as are of relevance to the development the subject of the modification application; and 4. as required under the provisions of s 4.55(3), it has taken into consideration the reasons given by the consent authority for the grant of the development consent; 1. in relation to the relevant matters within s 4.55(2)(a) of the EP&A Act, the Parties, with the support of their experts, agree, and I accept that: 1. the Approved Development, as proposed to be modified, would be substantially the same development as that originally approved, as confirmed within the Applicant's Statement of Environmental Effects; 2. with the exception of the number of storeys, the Approved Development, as proposed to be modified, would remain, in a quantitative sense, exactly the same as that already approved. Further, the Parties agree that the number of storeys is increased by one, and this change is not a "radical transformation" of the Approved Development, given that the additional level is a basement and would be positioned entirely below ground; 3. in a qualitative sense, the Proposed Modification would provide a subterranean space that would be used exclusively for storage, and the essence of the development would remain unchanged, that being two attached dwellings each containing 4 bedrooms and 2 parking spaces. The Parties also agree that the Proposed Modification will not alter how the property would be used and nor would it vary the level of intensity of the development; 4. on the basis of the above points, the requisite provisions of s 4.55(2)(a) of the EP&A Act are satisfied; 1. in relation to the provisions of ss 4.55(2)(c) and 4.55(2)(d) of the EP&A Act: 1. the modification application was publicly notified between 20 May 2020 and 5 June 2020; 2. no submissions were received in response to the notification; and 3. the provisions of s 4.55(2)(b) have been satisfied; 1. in relation to the provisions of s 4.55(3) of the EP&A Act, the Parties have: 1. considered the matters in s 4.15(1) as are of relevance to the development that is the subject of the modification application; 2. considered the reasons given by the consent authority for the grant of the consent that is sought to be modified; and 3. agreed that, on the basis of [(i)] and [(ii)]above, the provisions of s 4.55(3) of the EP&A Act have been satisfied; 1. as a consequence of the above points (at [(a)] to [(d)]) the relevant jurisdictional considerations within s 4.55(2) of the EP&A Act have been satisfied; 1. the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept that: 1. the application does not involve a change in use and there is no concern with respect to contamination; 2. the Council's records are that the past and current use of the Subject Site is as a dwelling house; and 3. having considered whether the land is contaminated, and on the basis of the information provided above (at [(2)(a)] and [(2)(b)] the provisions of cl 7 of SEPP55 are satisfied and no further investigation of the Subject Site is required; 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the development consent imposed conditions requiring compliance with BASIX certificates and the proposed modification does not alter the BASIX requirements of the development; 2. in relation to the provisions of SLEP, the Parties advise, and I accept that: 1. pursuant to the provisions of cl 2.3, the Subject Site is zoned R3 Medium Density Residential and the Applicant's dual occupancy development is permissible with development consent and is consistent with the objectives of the zone; 2. pursuant to the provisions of cll 4.1A, 4.3, and 4.4 the Approved Development, as proposed to be modified, would remain compliant development standards concerning minimum lot size, height of buildings and floor space ratio; 3. pursuant to the provisions of cl 5.10 of SLEP, the Approved Development, as proposed to be modified, is within 38m of a heritage listed park, yet is of a size and scale as to have no impact on the heritage item; 4. pursuant to the provisions of cll 6.1 and 6.4 of SLEP, the Approved Development, as proposed to be modified: 1. is not within 500m of land mapped as containing Class 1 to 4 acid sulfate soils; and 2. has access to essential services. 1. Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EP&A Act have been so satisfied. 2. I am further 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 to dispose of the proceedings in accordance with the Parties' decision. 4. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 5. The Parties have advised that: 1. Strathfield Municipal Council as the relevant consent authority has agreed under clause 121B of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending Modification Application DA2020/004/2 the subject of these proceedings with the following amended plans: 1. Architectural plans prepared by BDA Designs, dated 13 October 2021 and drawing Nos 1/10, 2/9, 3/9, 6/9, and 8/9. 1. The amended application has been uploaded on the NSW Planning Portal; and 2. The Applicant has subsequently filed the amended application with the Court. Orders 1. As a consequence of the above, the Court makes the following orders: 1. The appeal is upheld; 2. The application to modify development consent No. DA2020/004/2 in the terms set out in Annexure 'A' is approved; 3. The terms of the consolidated Development Consent No. DA2020/004 are set out in Annexure 'B'. 1. The Respondent is directed to upload the consolidated development consent to the Planning Portal within 7 days of this judgment. ……………………….. M Chilcott Commissioner of the Court Annexure A (146235, pdf) Annexure B (277036, 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: 29 October 2021