Land and Environment Court New South Wales Medium Neutral Citation: BCMA Investments Pty Ltd as Trustee for BCMA Trust v North Sydney Council [2022] NSWLEC 1490 Hearing dates: Conciliation conference on 24 August 2022 Date of orders: 16 September 2022 Decision date: 16 September 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's s 8.15(3) costs in the agreed amount of $5,000, payable within 28 days of the date of the orders. (2) The appeal is upheld. (3) Development Consent No. 238/19 is modified in the terms in Annexure A. (4) Modification application no 238/19/2 to modify development consent 238/19 seeking internal and external alterations to an approved boarding house at premises known as 21 Christie Street, Wollstonecraft, is approved, subject to the conditions of consent in Annexure B. Catchwords: DEVELOPMENT APPLICATION: modification application – boarding house development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 68, 69, Sch 7A Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Category: Principal judgment Parties: BCMA Investments Pty Ltd as Trustee for BCMA Trust v North Sydney Council (Applicant) North Sydney Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Hall & Wilcox (Respondent) File Number(s): 2022/115396 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by North Sydney Council (the Respondent) of modification application DA238/19/2, seeking to modify the consent granted to DA238/19 at No 21 Christie Street, Wollstonecraft (the site). 2. Relevantly, the consent sought to be modified was granted by the Court on 27 January 2021, for development pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 3. On 24 August 2022, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 4. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties' advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters. 5. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 2 September 2022. 6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the modification of the development consent, subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 7. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 9. Firstly, as the appeal is made pursuant to s 4.56 of the EPA Act, I must be satisfied, as the presiding Commissioner, that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent. 10. Pursuant to s 4.56(1) of the EPA Act, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified for two reasons: 1. The proposal does not seek to modify the window openings but rather the treatment of the windows within the limits of the openings for which consent has been granted. 2. The modest extent of additional basement is within the building footprint and does not create any adverse impact. 1. Next, while the original consent was granted pursuant to SEPP ARH, the original use for which consent was granted is classified under the State Environmental Planning Policy (Housing) 2021 as 'co-living housing' (Housing SEPP). Operation of Housing SEPP is not stayed by the terms of the Savings provision at Schedule 7A as the consent at [2] was granted prior to the commencement of Housing SEPP. 2. Co-living housing is permitted by s 67 of Housing SEPP on land in which development for the purposes of co-living housing, residential flat buildings or shop top housing is permitted under another environmental planning instrument. Residential flat buildings are permissible in the R4 High Density Residential zone, according to the North Sydney Local Environmental Plan 2013 (NSLEP). 3. Section 68 of the Housing SEPP sets out development standards relating to development for the purposes of co-living housing that, if complied with, prevent the consent authority from requiring more onerous standards. The proposal complies with those non-discretionary standards at s 68, but for the minimum landscaping requirements at subs (2)(g) identified as 40% of the site. 4. A landscaped area of 34.9% is provided, consistent with the development for which the consent was originally granted, and where the Court has consistently held that the power to modify a consent that breaches a development standard is a complete source of power, and so cl 4.6 of the NSLEP does not apply to modification applications: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31]. 5. Subsection 69(2) provides for standards that must be considered prior to the grant of development consent. While the building separation distance does not comply with the distances set out in the Apartment Design Guide (subs (2)(b)), the proposal seeks to modify the development consent originally granted, and deals with amenity impacts such that no adversity arises. I am otherwise satisfied that the proposal achieves the standards set out in s 69 of the Housing SEPP. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. North Sydney Council, as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the architectural plans the subject of modification application number 238/19/2 filed with the court on 22 April 2022. 2. The amended application was uploaded to the NSW Planning Portal on 1 September 2022, and was subsequently filed with the Court on 8 September 2022. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's s 8.15(3) costs in the agreed amount of $5,000, payable within 28 days of the date of the orders. 2. The appeal is upheld. 3. Development Consent No. 238/19 is modified in the terms in Annexure A. 4. Modification application no 238/19/2 to modify development consent 238/19 seeking internal and external alterations to an approved boarding house at premises known as 21 Christie Street, Wollstonecraft, is approved, subject to the conditions of consent in Annexure B. …………………… T Horton Commissioner of the Court ********** Annexure A Annexure B 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: 16 September 2022