Land and Environment Court New South Wales Medium Neutral Citation: Plumb v Randwick City Council [2021] NSWLEC 1721 Hearing dates: Conciliation Conference 4 and 5 November 2021 Date of orders: 24 November 2021 Decision date: 24 November 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) the appeal is upheld; (2) Development Consent DA/154/2020/A is modified in the terms in Annexure A; (3) Development Consent DA/154/2020/A as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – conciliation – modification of development consent – residential flat building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.7 Environmental Planning and Assessment Regulation 2000, cl 115, 121B Land and Environment Court Act 1979, s 34 Randwick Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy No 55 – Remediation of Land 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 Plumb v Randwick City Council [2021] NSWLEC 1067 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: Randwick Comprehensive Development Control Plan 2013 Category: Principal judgment Parties: Stuart Plumb (Applicant) Randwick City Council (Respondent) Representation: Counsel: J Reid (Applicant) M Harker (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2021/175542 Publication restriction: No Judgment 1. COMMISSIONER: This is Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of an application pursuant to s 4.56 to modify Development Application No 154/2020 seeking to modify an approved residential flat building to incorporate the following changes (the Proposed Modification) at 20 Glen Avenue Randwick legally identified at Lot 26 DP 7611 (the Site): 1. Level 1 (i) Basement extended west to provide for a second exit, and to relocate the bin room from level 3. (ii) Basement vents added to western wall. 2. Level 2 (i) Unit 1 increased in size with the addition of new Bedroom 4 and new playroom, with the western elevation all extended to the rear boundary. (ii) Windows / doors added for playroom and Bedroom 4 and a small indent to provide additional landscaping. (iii) Rear deck extended towards the rear boundary. (iv) Unit 1, Bedroom 1 robe reconfigured and window deleted. 3. Level 3 (i) Unit 2 increased in size with the addition of new Bedroom 4 and new playroom, with the western elevation wall extended to the rear boundary. (ii) Windows added for playroom and bed 4. (iii) Rear deck extended towards the rear boundary. (iv) Bed 1 robe reconfigured, and window deleted. (v) Planter adjacent to bin room removed and plant room (batteries for solar) reconfigured. (vi) Bin room replaced with bulky good storage, and car list stop deleted. 4. Level 4 (i) Reconfigured Bedroom 2. 5. Level 5 (i) Lift door repositioned 90 degrees to eastern list shaft wall and laundry relocated. (ii) Unit 4 entry moved to align with eastern lift wall. (iii) Unit 4 robe reconfigured and ensuite added. 6. Roof Level (i) ORB finish replaced with MET (ii) Mechanical riser overrun and basement exhaust duct added. 1. On 16 February 2021 Commissioner Walsh in Plumb v Randwick City Council [2021] NSWLEC 1067 pursuant to s 34 of the Land and Environment Court Act 1979 upheld the appeal and granted development consent to the residential flat building the subject of the Proposed Modification. 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 has been held on 4 and 5 November 2021. I have presided over the conciliation conference. 3. 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 approving the Proposed Modification subject to conditions. 4. 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 4.56 of the EPA Act to approve the Proposed Modification. 5. 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 terms of s 4.56 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Note which I summarise below. Modification Power 1. The relevant jurisdictional requirements are contained in subss 4.56(1)-(1A) of the EPA Act, which provides as follows: (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with— (i) the regulations, if the regulations so require, and (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 (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) 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. The first matter is to form a position opinion that the Proposed Modification is substantially the same as the development for which the 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). 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). 2. A Joint Expert Report prepared by Anthony Betros, Town Planner for the Applicant and Gerard Turisi, Town Planner for the Respondent was filed on 26 October 2021 (JER Planning). Both expert planners agree that the amended proposal remains substantially the same development as the original grant of approved. (JER Planning, par 9). They undertake a qualitative and a quantitative comparative assessment. 3. The qualitative comparative assessment by the experts concludes as follows: 1. The proposed use as a residential flat building will not be altered; 2. The general envelope of the proposal is extended to the west to accommodate the addition of a new bin room and pedestrian exit from the basement (as required by clause D1.2 of the BCA) to the rear as well as an extension of levels 2 and 3 so that the rear setback is reduced from 13.801m to 11.261m (to the north side of the balcony) and from 12.998m to 10.458m at the south side of the balcony; 3. The architectural style remains the same; 4. The impacts on neighbouring properties are substantially the same as the extension of the built form is behind a secondary dwelling at 22 Glen Avenue and is ameliorated to 18 Glen Avenue by articulation of the southern façade. 1. From a quantitative comparative assessment, the changes between the approved plans (revision C) and the modification plans (revisions H and I) are set out in the following table: Approved Proposed Updated Rev C Rev H & I (Section 34 agreement) Part 2, Part 3 storeys. Part 2, Part 3 storeys. FSR: 0.79:1 0.74:1 being an additional 26.88m2 (GFA 430.18m2) (GFA 457.06m2) 0.75 FSR = 433.5m2 GFA Equates to 5.4% over 0.75 FSR of 433.5m2 Units: Units 2 x 2 bedrooms 2 x2 bedrooms 2 x 3 bedrooms 2 x 4 bedrooms plus playroom Setbacks (rear): To balcony edge: 10.458m (south side balcony) To balcony edge: 11,261m (north side of balcony) 12.998m (south side balcony) Reduction in setback by 2.54m equates to a 19.5% reduction to approved setback 13.801m (north side of balcony) 3.34m greater than DCP requirement of 7.12m (15% of block length) To building edge: To building edge 16.018m (south side balcony) 13.408m (south side balcony) 16.821m (north side of balcony) 14.221m (north side of balcony) Reduction in setback by 2.6m, equates to a reduction of 16.2% to approved setback Balcony depth: Unit 1 & 2: 2.8m Unit 1 & 2: 2.85m Reduction of 0.05m from approved Balcony Area Unit 1: 18.58m2 Unit 1: 25.96m2 Reduction of 7.38m2 equates to 28.4% reduction Unit 2: 26.75m2 Unit 2: 18.58m2 Reduction of 8.17m2 equates to 30% reduction. Building footprint: Length of levels 2 and 3 Length measured from fire stairs to the rear elevation (edge of balcony) South elevation: 30.1m Length of levels 2 and 3: Equates to 7.4% increase 28.01m North elevation: 30.9m Equates to 10.3% increase Building height: To rear elevation measured from ground to top of balustrade of balcony to unit 2 along section line 2: 4.9m 4.1m (4.6m under height limit) Open Space Landscape 321.94m2 (55.5%) Landscape 342.21m2 (59.2%) 5.9% reduction Deep Soil 222.54m2 (38.5%) Deep Soil 192.97m2 (33.4%) 13% reduction 1. I have considered the above qualitative and quantitative comparisons, and I have considered the opinion of the experts. I note that the parties are of the view that the Proposed Modification will result in substantially the same development. For these reasons I have formed the positive opinion of satisfaction that the Proposed Modification is substantially the same as the development for which the consent was originally granted. 2. Having formed the positive opinion above, I now consider the provisions of subss 4.56(1)(b)-(d) regarding notification of the Proposed Modification. The modification application was notified in accordance with the Environmental Planning and Assessment Regulation 2000 (the Regulation) and the Randwick Comprehensive Development Control Plan (RDCP) and 3 submissions were received and are included at Tab 4 of the Respondent's Bundle of Documents filed 28 October 2021. 3. 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. To the extent that one of the objectors gave evidence to the Court that the shadow diagrams were incorrect, the parties and their experts agree that the diagrams (views from the sun) are correct. 4. To the extent that that same objector expressed a concern as to damage to her property during construction, it is noted that the original approval included condition 33 in the conditions of consent which requires dilapidation reports to be obtained prior to construction works. That condition has not been amended. 5. Finally, the consent authority must take 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. 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. 6. 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 R3 Medium Density Residential in the Randwick Local Environmental Plan 2012 (Randwick LEP 2012) and the proposed use is compatible with the objectives of the R3 zone. The parties have taken into consideration the objectives of the floor space ratio development standard pursuant to cl 4.4 of the Randwick LEP 2012 and consider that, in light of amendments to the plans, the additional 26.88m2 of gross floor area generated by the modification proposal is consistent with the objectives of the clause. 7. 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 Apartment Development 2. State Environmental Planning Policy No 55 – Remediation of Land 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 4. Randwick Local Environmental Plan 2012 (including cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.7, 6.10) 5. Randwick Comprehensive Development Control Plan 2013, particularly Part C2 – Medium Density Housing. 1. The planning experts agree that: 1. More than 3 hours of solar access will be retained to the living and private open space areas between 8am and 4pm midwinter to 18 Glen Avenue (par 10, Joint Report); 2. The additional built form towards the rear of the site will not generate any adverse visual privacy, acoustic or view impacts (par 11, Joint Report); and 3. The built form is compliant with the front and rear setbacks and the height control in cl 4.3 of the Randwick LEP 2012 (par 13, Joint Report). 1. To the extent that Council's expert was concerned with the visual impact of the extended built form towards the rear of the site and the articulation of the form to the side boundaries, the Council agrees that the amendments proposed provide for sufficient articulation and relief to the bulk of the building, including by setting the rear balconies in from the southern boundary by 3200mm. 2. The original grant of consent was issued by order of the Court following a s 34 agreement being entered into between the parties. The reasons for the Court's decision that the decision was one that the Court had power to make and are set out in the judgment of Commissioner Walsh in Plumb v Randwick City Council [2021] NSWLEC 1067. Commissioner Walsh noted at [8], consistent with the provisions of s 34 of the LEC Act, that the Court "had no direct regard to the merits of the application" in being satisfied that it should make the orders sought by the parties. Further, Commissioner Walsh in his decision at [6] states: "The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in a note to the Court received by email on 21 January 2021. The note explained how jurisdictional matters have been or could be satisfied." 1. Finally, at [7] and [8] Walsh C confirms: "[7] … I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. [8] I note that I have had no direct regard to the merits of the application in coming to this position." 1. To the extent that the Council's reasons contained in the Development Assessment Report may be relevant reasons referred to in s 4.56(1A), and noting that the applicant's position is that those reasons are irrelevant, the Respondent is satisfied that it has had regard to those reasons and considers that the modification application should be approved. 2. I have also taken into consideration the conciliation conference provisions of subss 34(3) and (10) of the LEC Act which provide as follows: (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner— (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. … (10) If an agreement is reached between the parties and proceedings are being dealt with under subsection (3), any document signed by the parties is admissible as to the fact that such an agreement has been reached and as to the substance of the agreement. 1. The Regulation requires a number of documents to accompany the Proposed Modification (cl 115). I am satisfied that an amended BASIX certificate has been provided to the Court in accordance with the requirement of cl 115(6) of the Regulation. I am also satisfied that an updated Design Verification Statement was lodged with the class 1 application in accordance with the requirement of cl 115(3) of the Regulation and has been further amended dated November 2021 and filed with the Court on 5 November 2021. 2. 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. I refer to and adopt the reasons given by the parties as summarised above. 3. 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. 4. The Court notes that: 1. that Randwick City Council as the relevant consent authority has agreed under clause 121B(1) of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Modification Application DA/154/2020/A dated 5 May 2021 (the date receipted by the Council) the subject of these proceedings in the following amended plans and detail: Plan Drawn by Dated PLU-DJO-1 Rev I CSA Architects 4/11/2021 Osmosis Design PLU-DJO-2 Rev I 4/11/2021 PLU-DJO-3 Rev I 4/11/2021 PLU-DJO-4 Rev H 27/10/2021 PLU-DJO-5 Rev H 27/10/2021 PLU-DJO-6 Rev H 27/10/2021 PLU-DJO-7 Rev H 27/10/2021 PLU-DJO-8 Rev I 4/11/2021 PLU-DJO-9 Rev H 27/10/2021 PLU-DJO-10 Rev I 4/11/2021 PLU-DJO-11 Rev H 27/10/2021 PLU-DJO-13 Rev H 27/10/2021 PLU-DJO-14 Rev H 27/10/2021 PLU-DJO-15 Rev H 27/10/2021 PLU-DJO-16 Rev I 4/11/2021 Landscape Planting 25 August 2021 Plan dwg LPP_01, revC BASIX Certificate No. 1084245M-05 3 November 2021 1. the Applicant has uploaded the amended application to the NSW Planning Portal on 4 November 2021; and 2. the Applicant has subsequently filed the amended application with the Court on 5 November 2021. Orders 1. The Court orders that: 1. the appeal is upheld; 2. Development Consent DA/154/2020/A is modified in the terms in Annexure A; 3. Development Consent DA/154/2020/A as modified by the Court is Annexure B. ………………………. E Espinosa Commissioner of the Court Annexure A (184017, pdf) Annexure B (568276, pdf) Plans (42003625, pdf) Landscape Plan (8773028, 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: 24 November 2021