Land and Environment Court New South Wales Medium Neutral Citation: BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2022] NSWLEC 1220 Hearing dates: Conciliation conference on 27 April 2022 Date of orders: 27 April 2022 Decision date: 27 April 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The application is granted. (2) Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification application No. MOD2021/0873 for amendments to the footprint and setbacks of units G03 and G04, the roof form of the development and the replacement of the pedestrian refuge island with kerb ramps at 54 Bardo Road, Newport in the terms set out in Annexure A is approved. (3) The terms of the consolidated Development Consent No, DA2020/1172 are set out in Annexure B. Catchwords: MODIFICATION APPLICATION – application to the Court to modify a Court-granted consent for seniors living – conciliation conference – agreement reached 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, s 34 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7A cl 2 Cases Cited: BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2021] NSWLEC 1357 Category: Principal judgment Parties: BPG Holdings (No. 5) Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: H Macfarlane (Solicitor) (Applicant) A Gough (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Storey and Gough Lawyers (Respondent) File Number(s): 2021/300078 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings are an application made to the Court to modify a development consent for seniors living which was granted by the Court on 18 June 2021 in BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2021] NSWLEC 1357. The application seeks to amend the footprint and setbacks of two of the units, amend the roof form to increase daylight and solar access to one of the units, and replace a pedestrian refuge island with kerb ramps. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 27 April 2022. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement pre-dates the date of the conciliation conference, and was reached following the lodging of an amended modification application on the NSW Planning Portal with the agreement of the Council, as required by cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). The amendments made in the amended modification application include an increase in the proposed modified setback from what was originally sought in the modification application lodged with the Court (from 5m to 5.5m), a change in the roof form to maintain the height that was approved on the grant of the development consent, and landscaping plans to appropriately ameliorate the bulk and scale of the proposed development as modified. The signed agreement is supported by an agreed jurisdictional statement, in which the parties address the applicable statutory planning framework and the jurisdictional issues that arise. 4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modification concerns alterations to the pedestrian access and to ancillary aspects of the built form, and does not change any essential element or result in any change to the type or size of the development, which remains seniors living housing containing 6 dwellings. The reduced setbacks relate only to the rear setback of the single storey component of the approved building, the increase in the floor space is marginal, and the parties agree that there is minimal additional adverse impact on the neighbouring properties. 5. Further, I am satisfied that the notification requirements of s 4.55(2)(c) have been met, and, consistent with s 4.55(2)(d), I have considered the submissions made with respect to the proposed modification. 6. I also note that the proposed modified development remains compliant with the statutory planning provisions considered by the Commissioner in granting development consent in BPG Holdings (No. 5) Pty Limited v Northern Beaches Council [2021] NSWLEC 1357, in which orders were similarly made in accordance with an agreement that was reached following a conciliation conference. Whilst the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) was repealed on 16 November 2021 by the State Environmental Planning Policy (Housing) 2021 (SEPP Housing), the SEPP HSPD, as in force immediately before its repeal, continues to apply to the approved development, pursuant to Sch 7A cl 2(1)(d) and (2) of the SEPP Housing. 7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act. 9. The Court notes that: 1. Northern Beaches Council as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending modification application No. MOD2021/0873. 2. The following amendments were made to the modification application (Amended Application): 1. Schedule of Amendments prepared by Giles Tribe 28 March 2022 Architectural Plans prepared by Giles Tribe: Drawing Name Drawing No. Rev. Cover Page DA001 T Demolition Plan DA002 M Site Analysis DA003 O Site Plan DA005 O Basement Plan DA006 X Ground Floor Plan DA007 Y 2. Level 1 Plan DA008 V 28 March 2022 Roof Plan DA009 P North and West Elevations DA010 Q South and East Elevations DA011 P Section AA & BB DA012 O Section CC & DD DA013 O Landscape Calculation plan DA014 R Deep Soil Plan DA015 Q GFA Calculations DA016 P Landscape Plans prepared by Site Image: Drawing Name Drawing No. Rev. Date Landscape Coversheet 000 G 29.03.2022 3. Landscape Plan 101 G 29.03.2022 Various Landscape Details 501 A 29.09.2021 Landscape Maintenance Schedule 502 A 29.09.2021 Stormwater plans prepared by Loka Consulting: Drawing Name Drawing No. Rev. Date Cover Page DO0 D 08.03.22 Basement Drainage Plan DO1 J 08.03.22 4. Basement Drainage Details DO2 G 08.03.22 Various Ground Floor/Site Drainage Plan DO3 O 29.03.22 Ground Floor/Site Drainage Details DO4 K 08.03.22 Erosion and Sediment Control Plan and Details DO5 D 08.03.22 First Floor and Roof Drainage Plan and Details DO6 C 08.03.22 1. The amended application was uploaded on the NSW Planning Portal on 21 April 2022. 2. That applicant has filed the Amended Application with the Court on 21 April 2022. 1. The Court orders that: 1. The application is granted. 2. Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification application No. MOD2021/0873 for amendments to the footprint and setbacks of units G03 and G04, the roof form of the development and the replacement of the pedestrian refuge island with kerb ramps at 54 Bardo Road, Newport in the terms set out in Annexure A is approved. 3. The terms of the consolidated Development Consent No, DA2020/1172 are set out in Annexure B. ……………………… J Gray Commissioner of the Court Annexure A (173523, pdf) Annexure B (348273, 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: 27 April 2022