Land and Environment Court New South Wales Medium Neutral Citation: Iglu No. 211 Pty Ltd v Bayside Council [2022] NSWLEC 1534 Hearing dates: Conciliation conference on 24 August 2022 Date of orders: 28 September 2022 Decision date: 28 September 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No. DA-2019/385 is modified in the terms in Annexure B. (3) Development Consent No. DA-2019/385/C as modified by the Court is Annexure C. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 Category: Principal judgment Parties: Iglu No. 211 Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: L Morphett (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Holding Redlich (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/67026 Judgment 1. Following a deemed refusal of its modification application, the applicant, Iglu No. 211 Pty Ltd, has appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) for approval of modifications to its development consent (DA2019/385) (Original consent). 2. The Original consent had been granted pursuant to the provisions of the repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). It approved a 12-storey boarding house (student accommodation) on land at 13B Church Avenue and 6-8 John Street, Mascot (site). Relevantly, the development has been commenced but not completed. Nor has the applicant paid any monies toward satisfaction of the s7.11 contribution condition under the Original consent. 3. The modifications sought under s 4.55(1A) of the EPA Act effect change to the development (both physical and operational) but with minimal environmental impact. The amending of the proposed conditions - consequent on these changes to the development - operate prospectively, not retrospectively (Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177). The modifications include changes to the internal configuration of the rooms to increase the number of student accommodation from 435 to 437, changes to the western façade with perforated aluminium cladding to achieve better screening building façade and monetary contributions payable to the Council via a planning agreement in lieu of contributions payable under s 7.11 or s 7.12 of the EPA Act. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 August 2022, and at which I presided. 5. 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 development consent as proposed to be modified subject to conditions. 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. There are jurisdictional prerequisites that must be satisfied before the function under s 4.55(1A) of the EPA Act can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note filed with the s34 agreement. 7. Based on the parties' submissions including the jurisdictional note and the evidence filed with the Court, 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. In that regard, I am satisfied that the development to which the consent is 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. I understand that the application's planning agreement has been notified and no submissions were received by the Council. 8. 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. 9. The Court notes that: 1. Bayside Council has agreed under cl 121B of the Environmental Planning and Assessment Regulation 2000 to the applicant further amending the modification application the subject of this appeal to include the further and amended material in the index marked "Annexure A" (amended application). 2. The amended application was uploaded to the NSW planning portal on 25 August 2022. 3. The applicant has subsequently filed the amended application with the Court on 31 August 2022. 1. The Court orders: 1. The appeal is upheld. 2. Development Consent No. DA-2019/385 is modified in the terms in Annexure B. 3. Development Consent No. DA-2019/385/C as modified by the Court is Annexure C. ………………………. S Dixon Senior Commissioner of the Court Annexure A (117422, pdf) Annexure B (226929, pdf) Annexure C (655579, pdf) ********** Amendments 30 September 2022 - Correction to typographical errors at [2] and [7]. 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: 30 September 2022