Land and Environment Court New South Wales Medium Neutral Citation: Benson McCormack Pty Ltd v Inner West Council [2022] NSWLEC 1377 Hearing dates: Conciliation conference on 17 May 2022 Date of orders: 18 July 2022 Decision date: 18 July 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No. DA201700349 is modified in the terms in Annexure A. (3) Development Consent No. DA201700349 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – modification - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56 Environmental Planning and Assessment Regulation 2021, cl 113 Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cll 4.4. 4.4, 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 55 – Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Hatziplis Holdings Pty Ltd v Inner West Council [2018] NSWLEC 1528 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433 Texts Cited: Apartment Design Guide Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Benson McCormack Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Inner West Council (Respondent) File Number(s): 2022/73897 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act). The Applicant has made the modification application to the Court pursuant to s 4.55(8) of the EPA Act. This is not an appeal against a decision of the Council, but an application invoking the original jurisdiction of the Court to modify consents granted by the Court filed with the Court on 15 March 2022. The modification application seeks approval to modify Development Consent DA201700349 issued by the Land and Environment Court in Hatziplis Holdings Pty Ltd v Inner West Council [2018] NSWLEC 1528 on 10 October 2018 (Consent). 2. The Consent approved the demolition of existing improvements and construction of a six-storey mixed use development containing four retail/commercial tenancies at ground level and residential apartments above, with associated roof top terrace and two level basement car park at 265-273 Illawarra Road, Marrickville, legally identified as Lots 35-42 in Deposited Plan 1092634 (the Site), subject to conditions of consent. 3. 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 17 May 2022. I have presided over the conciliation conference. 4. 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 subject to conditions. 5. The parties' experts agree that all contentions raised in the SOFC have been resolved by the following: 1. amended plans and supporting documents; and 2. agreed modified conditions of consent. 1. The amendments to the modification application include the following changes: 1. Amendments to shop fronts, residential lobby, loading dock facilities at ground level and the introduction of planting to the corner of Illawarra Road and Marrickville Lane; 2. Removal of rooftop Communal Open Space; 3. Building realignment to north-eastern corner to address overshadowing; 4. Reduction in floor space to be consistent with the approved development; and 5. Multiple minor changes to building facades to address items relating to privacy and internal amenity, including solar access. 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. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification of consent. 2. 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 in a joint jurisdictional statement which I summarise below. 3. Written consent of the owner was provided when the modification application was lodged and is found behind Tab 1 in the Class 1 Application filed 15 March 2022. 4. Section 4.56 of the EPA Act enables an application for the modification of a consent granted by the Court to be made to the Council. However, the modification application is made by the Applicant direct to the Court pursuant to s 4.55(8) of the EPA Act, which extends the operation of s 4.55 to enable the Court to modify a consent granted by it. This is a modification application made in accordance with s 4.55(2) of the EPA Act which provides as follows: 2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the 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 consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (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 (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. 1. In relation to s 4.55(2)(a), the parties agree, and I am satisfied that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. I adopt the reasons provided by the parties as follows: 1. The material or essential features of the development approved by the consent comprised of the construction of a six storey mixed use development containing commercial / retail on the ground floor and residential apartments above in accordance with the plans, which form part of the consent. 2. None of these material or essential features will change if the approved development is modified in the manner proposed by the modification application and the modified development will remain "essentially or materially" the same and will have "the same essence" as the approved development. 1. In relation to the other jurisdictional pre-conditions contained in s 4.55(2) of the EPA Act: 1. The modification application does not propose the modification of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body. Section 4.55(2)(b) therefore does not apply. 2. As required by s 4.55(2)(c), the modification application was publicly notified by the Council between 6 April 2022 and 29 April 2022. 1. The Council received one (1) submission in response to the public notification of the modification application. As required by s 4.55(2)(d), the Council has taken that submission into account in the determination of the modification application. 1. Section 4.55(3) of the EPA Act provides that, in determining an application for the modification of a consent, the consent authority must take into consideration: 1. 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; and 2. the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. The parties summarised the consideration of relevant matters under s 4.15(1) of the EPA Act as follows: 1. An updated BASIX Certificate (No. 1283365M_03) has been prepared and filed with the amended application in accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 2. The contamination potential of the site was considered as part of the original approval. The proposed modifications do not introduce any new considerations. The original consent imposed conditions requiring any new information identified during development works that has the potential to alter previous conclusions about site contamination is to be notified to the Council and the Principal Certifying Authority. The proposed modifications do not seek to alter this condition. In accordance with State Environmental Planning Policy No. 55 – Remediation of Land the parties agree that no further assessment of contamination is necessary. 3. 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 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and I have considered the detailed explanation set out at page 13 of the Statement of Environmental Effects behind Tab 2 of the Class 1 Application filed on 15 March 2022. 4. There are a number of relevant provisions of the Marrickville Local Environmental Plan 2011 (MLEP) which are considered as follows: 1. The Site is zoned B2 Local Centre under the MLEP and the proposed use of the site is permissible with consent in the zone. 2. The proposed development is consistent with the objectives of the zone. 3. The approved development exceeded the maximum height of buildings development standard pursuant to cl. 4.3 of MLEP. The proposed modification increases the level of exceedance, but this exceedance is attributable to access to the proposed rooftop communal open space. The variation does not need to be supported by a written variation request pursuant to cl.4.6 of MLEP (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433) (Standley) and, the parties agreed, that the variation is supported on the basis that it is consistent with the objectives of the development standard and the objectives of the zone (the parties refer to page 10 of the Statement of Environmental Effects behind Tab 2 of the Class 1 Application filed 15 March 2022). 4. The approved development exceeded to maximum floor space ratio development standard pursuant to cl. 4.4 of MLEP. The proposed modification slightly increases the gross floor area and, as a consequence, the FSR exceedance. The variation does not need to be supported by a written variation request pursuant to cl.4.6 of MLEP (Standley) and, the parties agreed, that the variation is supported on the basis that it is consistent with the objectives of the development standard and the objectives of the zone (the parties refer to page 12 of the Statement of Environmental Effects behind Tab 2 of the Class 1 Application filed 15 March 2022). 1. Finally, in relation to the provisions of Marrickville Development Control Plan 2011 (MDCP), which applies to development on the site, the parties agree that: 1. the applicable controls in MDCP have been considered in the assessment of the modified development; and 2. a summary of the modified development's compliance with relevant controls is provided within the Applicant's Statement of Environmental Effects (at page 15 behind Tab 2 of the Class 1 Application). 3. The modified development otherwise complies with applicable controls in MDCP, and to the extent that they may not, the modified development represents a feasible alternative solution that achieves the objectives of those controls in satisfaction of the provisions of s 4.15(3A) of the EPA Act. 1. I have also considered the reasons given by the Court when granting the Consent. 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 adopt the reasons given by the parties and as set out above in this judgment. 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. Notations: 1. The Court notes: 1. Inner West Council as the relevant consent authority for the purposes of cl.113 of the Environmental Planning and Assessment Regulation 2021 agrees to the Applicant amending the s4.55(8) modification application to rely on the following documents: 1. Amended Architectural Plans prepared by Benson McCormack Architects dated 24 June 2022. 2. Amended Landscape Plans (Rev B) prepared by Matthew Higginson Landscape Architecture Pty Ltd dated 29 June 2022. 3. BASIX Certificate No. 1283365M_03 dated 29 June 2022. 4. Nationwide House Energy Rating Scheme NatHERS Certificate No. 0007096100-01 dated 29 June 2022. 5. Nationwide House Energy Rating Scheme – Class 2 Summary NatHERS Certificate No. 0007097200 dated 29 June 2022. 1. The amended modification application has been uploaded to the NSW Planning Portal on 1 July 2022 (PAN-213188). 2. The Applicant will subsequently filed the amended modification application with the Court on 1 July 2022. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development Consent No. DA201700349 is modified in the terms in Annexure A. 3. Development Consent No. DA201700349 as modified by the Court is Annexure B. ………………………. 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: 18 July 2022