Land and Environment Court New South Wales Medium Neutral Citation: X-Sealant Pty Ltd v Burwood Council [2022] NSWLEC 1316 Hearing dates: Conciliation conference on 3 and 18 March 2022, 11 and 14 April 2022, 2, 17 and 30 May 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld; (2) Modification Application No. MOD.10.2017.124.4 to modify development consent DA.10.2017.124.1 is approved; (3) Development consent DA.10.2017.124.1 is modified in the terms in Annexure A to this agreement; and (4) As a consequence of order 22(3), development consent DA.10.2017.124.1 is subject to the consolidated modified conditions set out in Annexure B to this agreement. Catchwords: DEVELOPMENT APPEAL – modification – penthouse apartment – communal open space – floor space ratio - conciliation conference – agreement between the parties - orders Legislation Cited: Burwood Local Environmental Plan 2012, cl 4.3, 4.4 Environmental Planning and Assessment Act 1979, s 4.16, 4.55, 8.7, Sch 1 Environmental Planning and Assessment Regulation 2000, cl 49, 115, 121B Environmental Planning and Assessment Regulation 2021, Sch 6, cll 49, 115. Land and Environment Court Act 1979, s 34 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 (Resilience and Hazards) 2021, s 4.6 Cases Cited: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: X-Sealant Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: A Kliese (Solicitor)(Applicant) J Corradini-Bird (Solicitor)(Respondent) Solicitors: Shaw Reynolds Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/289680 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application No. MOD.10.2017.124.04 seeking approval to modify Development Consent No. 124/2017 by the removal of the approved communal open space and construction of a 4-bedroom penthouse apartment (the Proposed Modification) at 68-72 Railway Parade and 2-10 Oxford Street Burwood legally known as Lot SP 101022 (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 has been held on 3 and 18 March 2022, 11 and 14 April 2022, 2, 17 and 30 May 2022. 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 modification to the development consent 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 4.55 of the EPA Act to approve a modification to a development consent. 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 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied which I summarise below. 6. The Statement of Facts and Contentions (SOFAC) filed 6 December 2021 at page 6 par (31) sets out that the Notification requirements have been satisfied and all submissions have been taken into consideration as required by Sch 1, Community Participation Requirements of the EPA Act and s 4.55(2)(c) of the EPA Act. 7. Pursuant to s 4.55(2), the Respondent is satisfied that the development as proposed to be modified is substantially the same. I have also formed this state of satisfaction. 8. It was originally contended in the SOFAC on page 9 that the modification application should be refused because the development as proposed to be modified is inconsistent with the reasons for the grant of the development consent which the Court must consider when determining an application for modification of a consent (s 4.55(3) of the EPA Act). At particular (e) the SOFAC states: "The 6 storey built form at the southern end of the site was an essential and material component of the originally approved development which is proposed to be significantly altered in both a qualitative and quantitative sense." 1. The reasons given by the Sydney Eastern City Planning Panel, extracted in the SOFAC for the consent for DA.10.2017.124.1 which was granted on 28 August 2018 subject to conditions on pages 4 and 10 is as follows: "One of the key changes involved increasing the height of the building at the corner of Railway Parade and Oxford Street and reducing the height of the building at the southern part of the site adjoining Burwood Public School. […] The Panel notes that the height control of 26m has been varied for the building at the northern end of the site following a submission by the applicant under cl 4.6 of the Burwood LEP 2012. The reason for this variation is to allow 10 storeys at the northern end of the site to compensate for 6 storeys near the school. The Panel approved the height variation because it has led to a design that casts less shadow on the school than one with a uniformly 8-storey building and has therefore resulted in a better planning outcome." 1. I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified as required by s 4.55(3) of the EPA Act and I am satisfied that the Proposed Development as amended by the Applicant is not inconsistent with the reasons set out above. 2. Schedule 6, Savings, transitional and other provisions of Environmental Planning and Assessment Regulation 2021, confirms that the Environmental Planning and Assessment Regulation 2000 continues to apply to a modification application submitted but not finally determined before 1 March 2022. 3. Written consent of the owner was provided when the modification application was lodged as evidenced in the Class 1 Application filed 30 November 2021 at Tab 2 with the letter providing owners consent dated 16 November 2020, (cl 49(1), Environmental Planning and Assessment Regulation 2000) 4. A verification statement dated 20 May 2022 has been provided in support of the modification application (cl 115(3A), Environmental Planning and Assessment Regulation 2000) 5. Contamination and remediation of the Site must be considered in determining a development application (State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, previously State Environmental Planning Policy No. 55- Remediation of Land, cl 7). The Site, which was approved for a mixed development, was deemed suitable for its intended use under DA-124/2017. Further investigation is not deemed required in this instance given that the proposed modification is substantially the same development as approved and the parties rely on the Statement of Environmental Effects dated 16 November 2020 at page 12, under Tab 6 of the Class 1 Application filed 30 November 2021. 6. The proposed modification is below the maximum height of buildings of 26 metres as provided in cl 4.3(2) of the Burwood Local Environmental Plan 2012 (BLEP). Architectural plans – prepared by Urban Link (DA-02 to DA-07, Rev E, dated 6 May 2022) 7. A floor space ratio (FSR) of 3:1 applies to the site pursuant to cl 4.4(2) of the BLEP. The development as proposed to be modified will have a floor space ratio of 3.08:1. Although the floor space ratio of the development as proposed to be modified will exceed the FSR development standard pursuant to cl 4.4(2) of the BLEP, the Applicant is not required to apply for a variation request pursuant to cl 4.6 of the BLEP (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433). Further, the proposed modification is consistent with floor space ratio objectives pursuant to cl 4.4 of the BLEP (Class 1 Application filed 30 November 2021 at Tab 6, Statement of Environmental Effects dated 16 November 2020, Appendix B). 8. The design quality principles have been considered and the proposed modification is consistent with the objectives specified in the Apartment Design Guide for the relevant design criteria as required by the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and the parties refer to the Statement of Environmental Effects dated 16 November 2020, Pages 12 to 15 in the Class 1 Application filed 30 November 2021 at Tab 6. 9. An updated BASIX Certificate has been provided dated 1 April 2022 which satisfies the requirement of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 10. 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 adopt the reasons given by the parties and as I have summarised above. 11. 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. Notations: 1. The Court notes that: 1. Burwood Council, as the relevant consent authority has agreed, pursuant to clause 121B(1) of the Environmental Planning and Assessment Regulation 2000, to amend Modification Application No. MOD.10.2017.124.4 in accordance with the amended plans and documents listed below: Plans / Document Author Plan No. / Dated Issue Site / Roof Plan Urban Link DA-02 / Issue E 29/04/22 As Built Penthouse – Level 06 UrbanLink DA-03/ Issue E 21/04/22 Demolition Plan UrbanLink DA-04/ Issue E 29/04/22 Proposed Penthouse UrbanLink DA-05/ Issue E 29/04/22 West Elevation UrbanLink DA-06/ Issue E 29/04/22 South & East Elevation Urban Link DA-07/ Issue E 29/04/22 BASIX Certificate (Penthouse) Greenworld Architectural Drafting No. 1109542S_03 01/04/22 BCA Compliance Report (Penthouse) J2 BCA Consulting 1972 – Rev C 04/04/22 Fire Engineering Report (Penthouse) J2 Fire Safety Engineering 1972 – Rev B 06/04/22 Design Verification Statement Urban Link 20/05/22 1. The amended modification application documents listed above were lodged on the NSW planning portal on 20 May 2022, except for the Design Verification Statement which was lodged on the NSW planning portal on 30 May 2022. 2. The Applicant filed the amended modification application with the Court on 19 May 2022, except for the Design Verification Statement which was filed with the Court on 23 May 2022. Orders: 1. The Court orders: 1. The appeal is upheld; 2. Modification Application No. MOD.10.2017.124.4 to modify development consent DA.10.2017.124.1 is approved; 3. Development consent DA.10.2017.124.1 is modified in the terms in Annexure A to this agreement; and 4. As a consequence of order 22(3), development consent DA.10.2017.124.1 is subject to the consolidated modified conditions set out in Annexure B to this agreement. ………………………. E Espinosa Commissioner of the Court Annexure A.pdf Annexure B.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 June 2022