Collaroy Street Pty Ltd v Northern Beaches Council [2022] NSWLEC 1448

Land and Environment Court New South Wales

Medium Neutral Citation: Collaroy Street Pty Ltd v Northern Beaches Council [2022] NSWLEC 1448 Hearing dates: Conciliation conference on 10 August 2022, final agreement filed 10 August 2022 Date of orders: 25 August 2022 Decision date: 25 August 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No. DA2020/1453 is modified in the terms set out at Annexure A. (3) Development Consent No. DA2020/1453 as modified by the Court is set out at Annexure B Catchwords: MODIFICATION APPLICATION – shoptop housing development – 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 2021, ss 29, 113 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No.65—Design Quality of Residential Apartment Development State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Warringah Local Environmental Plan 2011, cl 4.3 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Category: Principal judgment Parties: Collaroy Street Pty Ltd (Applicant) Northern Beaches Council (Respondent) File Number(s): 2022/113935 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). The appeal concerns a Modification Application MOD2022/0230 (the MA) which seeks to modify the parent Development Consent DA2020/1453 (the DA) for the demolition of the existing dwelling, the construction of a residential flat building and associated strata subdivision at 1 Alexander Street and 4 Collaroy Street, Collaroy (the site). 2. Consent for the parent DA was granted by the Court on 22 December 2021. These proceedings relate to an MA made directly to the Court (filed on 21 April 2022) pursuant to s 4.55(8) of the EPA Act. 3. Specifically, the MA seeks approval for a series of refinements in the detailed design of the DA to address the efficiency of internal layout, serviceability and constructability issues identified during the preparation of Construction Certificate documentation. 4. With the agreement of the Respondent, the MA was amended by the Applicant and was uploaded to the NSW Planning Portal on 27 July 2022. 5. 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 10 August 2022. I presided over the conciliation conference. 6. 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. 7. During the conciliation conference, the parties reached an agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. 8. 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. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. 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. 11. 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. 12. The parties agree, and I am satisfied, that the MA was publicly notified from 5 May in accordance with the Respondent's Community Participation Plan. The Respondent received four submissions in response to the notification, and the matters raised in these submissions have been considered in formulating the agreed conditions of consent. 13. The parties agree, and I am satisfied, that the Warringah Local Environmental Plan 2011 (WLEP) is a relevant environmental planning instrument. The site is zoned B2 Local Centre and the proposed development - characterised as shoptop housing development - is permissible with consent, and that the MA (as amended) maintains the objectives of the B2 zone. 14. The parties agree, and I am satisfied, that all principal development standards of the WLEP are maintained by the MA (as amended). Of particular note, the MA includes design refinements which provide for a 300mm increase in the height of the upper-level eaves. Pursuant to cl 4.3 - Height of buildings - of the WLEP, the overall building height has been maintained through a corresponding reduction in the pitch of the roof and the maintenance of previously approved lift overrun heights. These changes have the effect of maintaining the currently approved maximum building height. 15. 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, Sean Gartner (NSW Registered Architect 6072) of Gartner Trovato Architects Pty Ltd, has prepared a Design Verification Statement dated August 2022, fulfilling the requirements of s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 16. The parties agree, and I am satisfied, that the MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A revised BASIX certificate, dated 15 March 2022, has been submitted with the MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate. 17. 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. 18. The Court notes that: 1. Pursuant to cl 113 of the EPA Reg, 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 27 July 2022. 3. The Applicant has filed the amended MA with the Court on 15 August 2022.