Land and Environment Court New South Wales Medium Neutral Citation: Lateral Estate Pty Ltd v Georges River Council [2022] NSWLEC 1318 Hearing dates: Conciliation Conference on 8, 16 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application MOD2022/0014 is approved and development consent DA2021/0110 is modified in the terms set out in Annexure A. (3) As a consequence of the modification, development consent DA2022/0014 is subject to the consolidated, modified conditions of consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – changes to residential apartments within mixed use development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10 Environmental Planning and Assessment Regulation 2000, cll 115, 121B Environmental Planning and Assessment Regulation 2021, Sch 6 cl 3 Land and Environment Court Act 1979, s 34 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Category: Principal judgment Parties: Lateral Estate Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent) File Number(s): 2022/62002 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal relates to the Applicant's modification application MOD2022/0014 (Modification Application) for the modification of development consent DA2021/0110 granted by the Georges River Local Planning Panel on 15 July 2021 (Consent). 2. The Consent relates to the land described as Lots 1 and 2 DP 1257940 known as 32 Montgomery St, Kogarah (Site). The Consent granted development consent for the change of use of one level of a thirteen storey mixed use development being erected on the Site from commercial to residential. 3. The Modification Application seeks to make various changes to the residential apartments the subject of the Consent. The Modification Application was amended on 14 June 2022 with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made, but not finally determined, before that date: 2021 Regulation, Sch 6 cl 3. The Modification Application was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the Modification Application. 4. As amended, the changes proposed by the Modification Application may be summarised as follows: * Apartment 206 – minor internal plan layout refinements * Apartments 207 and 208 – common corridor highlight window relocated to accord with internal layout changes; * Apartment 207 – altered bathroom layout; * Apartment 209 – courtyard gate relocated and separated entry lobby between dual key dwellings provided; * All apartments – altered external glazing arrangement for winter gardens. 1. The Modification Application also seeks to amend the following conditions of the Consent: * Condition 1 - updated drawing references, this includes architectural drawings and a new landscape plan drawing set; * Condition 22 – removing the need for two car parking spaces to be allocated to Unit 207; * Condition 50 – consequential amendment as the result of the amendment of condition 22; * Condition 65 - replace the reference to "Waste Management Plan prepared by Dickens Solutions Revision 3 dated April 2021" with "operational Waste Management Plan prepared by Elephants Foot Revision G dated 17 April 2019". 1. The Modification Application was made to the Council on 20 January 2022. When the Modification Application had not been determined by the Council within the period after which it was taken to have been refused, on 3 March 2022 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.55(1A) of the EPA Act. 2. On 8 June 2022 the Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which took place on that day. 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 would be acceptable to the parties. The signed agreement was filed on 15 June 2022 and was supported by a Jurisdictional Statement provided by the parties on the same date. The parties' agreement involves the Court modifying the Consent in the way described in pars [4] and [5] above. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The appeal was brought pursuant to s 8.9 and was made within the time required by s 8.10, of the EPA Act. 2. The Modification Application is made by the Applicant with the consent of the owner of the Site in accordance with s 4.55(1A) of the EPA Act and cl 115(1)(h) of the EPA Regulation. 3. I am satisfied that the proposed modification is of minimal environmental impact, this being the test required by s 4.55(1A)(a) of the EPA Act. The Modification Application seeks to make a number of minor internal and external changes to the residential apartments the subject of the Consent. An Amended Statement of Environmental Effects prepared by Avenue Planning Pty Ltd and dated 13 May 2022 states that the changes proposed will make a number of improvements to the approved development which are a result of the construction documentation process. It also explains that the proposed modifications maintain the same floor space ratio and maximum building height as the approved development and will not change any of the key numerical aspects of the development. 4. I am also satisfied that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent was modified, this being the test required by s 4.55(1A)(b) of the EPA Act. The Modification Application proposes to make minor changes to the four approved residential apartments. A comparison between the originally approved development and the development as proposed to be modified demonstrates that there is no radical transformation of the development, and the essence of the development remains the same: Arrage v Inner West Council [2019] NSWLEC 85 at [27]. 5. The notification requirements of s 4.55(1A)(c) of the EPA Act have been met. The Modification Application was placed on neighbour notification between 17 February and 3 March 2022 and no submissions were received. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes: 1. That the Respondent as the relevant consent authority has agreed, under cl 121B(1) of the EPA Regulation, to the Applicant amending the Modification Application. 2. That the Respondent has uploaded or verified the amended application on the NSW planning portal on 14 June 2022. 3. That the Applicant has subsequently filed the amended application with the Court on 15 June 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Modification application MOD2022/0014 is approved and development consent DA2021/0110 is modified in the terms set out in Annexure A. 3. As a consequence of the modification, development consent DA2022/0014 is subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………… A Bradbury Acting 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: 28 June 2022