Land and Environment Court New South Wales Medium Neutral Citation: Developcorp NSW Pty Ltd v Campbelltown City Council [2022] NSWLEC 1404 Hearing dates: Conciliation conference on 13 and 27 May and 14 June 2022, final agreement filed 17 June 2022 Date of orders: 3 August 2022 Decision date: 03 August 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent DA 2293/2015/DA-RA is modified (MA 2293/2015/DA-RA/B) in the terms as set out at Annexure A. (3) Development Consent DA 2293/2015/DA-RA as modified by the Court (MA 2293/2015/DA-RA/B) is set out at Annexure B. Catchwords: MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, ss 29, 121B Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No.55—Remediation of Land, cl 7 State Environmental Planning Policy No.65—Design Quality of Residential Apartment Design State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Campbelltown Local Environmental Plan 2015, cl 7.13 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Category: Principal judgment Parties: Developcorp NSW Pty Ltd (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: B Barhoum (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Lawfirm Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2022/37715 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application MA 2293/2015/DA-RA/B (the MA) by Campbelltown City Council (the Respondent). The MA sought to modify the existing parent Development Consent DA 2293/2015/DA-RA (the DA) for the construction of a six-storey residential apartment building development at 44-46 Warby Street, Campbelltown (the site). 2. Specifically, the MA sought to reconfigure the basement to provide additional parking, revise external materials and finishes, delete one set of fire stairs, introduce amendments to apartment layouts, delete a communal living area on Level 1, converting a one bedroom unit into a two bedroom unit, and amend the ground floor communal open space to provide for two additional units. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 May, 27 May and 14 June 2022. I presided over the conciliation conference. 4. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter was conducted by Microsoft Teams. 5. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. 6. 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(8) of the EPA Act to modify the existing DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 9. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the MA remains substantially the same as the parent DA. 10. The parties agree, and I am satisfied, that the MA (as proposed to be amended) was publicly notified from 31 May to 14 June 2022 in accordance with the Respondent's relevant policy, and no submissions were received. 11. The parties' agreement is reflected in the lodgment of an amended MA on the NSW Planning Portal on 12 June 2022, which was made with the agreement of the Respondent pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 12. The amended MA includes design changes and additional information that cumulatively resolve the contentions raised by the Respondent, which related to solar access, residential amenity, communal open space and car parking, amongst other contentions. 13. Of relevance, the amended MA incorporates measures to reconfigure the general arrangement of ground floor apartments, communal open space and a common room to improve residential amenity, privacy and solar access. 14. The parties agree, and I am satisfied, that the Campbelltown Local Environmental Plan 2015 (CLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent and that the amended MA maintains the objectives of the R4 zone. 15. The parties agree, and I am satisfied, that all principal development standards of the CLEP are maintained by the amended MA. 16. The parties agree, and I am satisfied, that the MA (as amended) results in a development which continues to maintain the level of design excellence demonstrated by the parent DA, pursuant to cl 7.13 - Design excellence - of the CLEP. 17. The parties agree, and I am satisfied, that State Environmental Planning Policy No. 55—Remediation of Land (SEPP 55) remains an additional relevant environmental planning instrument. The parties agree the existing DA satisfactorily addressed the requirements of cl 7 of SEPP 55 and no additional considerations are warranted as a result of the MA. 18. The parties agree, and I am satisfied, that State Environmental Planning Policy No. 65—Design Quality of Residential Apartment Development (SEPP 65) is an additional relevant environmental planning instrument. Pursuant to the provisions of SEPP 65, the Applicant's architect, Pyramid Consulting, has prepared a Design Verification Statement dated 6 December 2021, fulfilling the requirements of cl 29 of the EPA Reg. 19. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A revised BASIX certificate, dated 15 June 2022, has been submitted with the amended MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate. 20. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 21. The Court notes that: 1. Pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the MA with the agreement of the Respondent. 2. The Applicant has uploaded the amended MA to the NSW Planning Portal on 12 June 2022. 3. The Applicant has filed the amended MA with the Court on 16 June 2022. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA 2293/2015/DA-RA is modified (MA 2293/2015/DA-RA/B) in the terms set out at Annexure A. 3. Development Consent DA 2293/2015/DA-RA as modified by the Court (MA 2293/2015/DA-RA/B) is set out at Annexure B. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (151370, pdf) Annexure B (263905, 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: 03 August 2022