Land and Environment Court New South Wales Medium Neutral Citation: Armada Avalon Pty Ltd v Northern Beaches Council [2022] NSWLEC 1573 Hearing dates: Conciliation conference on 14 October 2022 Date of orders: 20 October 2022 Decision date: 20 October 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) The Appeal is upheld. (2) The Modification Application seeking to modify Development Consent No. DA2019/1260 is approved and the Development Consent is modified as set out in Annexure "A". (3) The Modification Application to Development Consent No. DA2019/1260, as approved by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure "B". Catchwords: MODIFICATION APPLICATION – application to modify Court Development Consent - Seniors Housing – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy (Housing) 2021, Sch 7A, cl 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Cases Cited: Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490. Category: Principal judgment Parties: Armada Avalon Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Koprivnjak (Solicitor)(Applicant) C Gough (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Storey and Gough Lawyers (Respondent) File Number(s): 2022/199709 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an application made to the Court to modify a Development Consent for Seniors Living which was granted by the Court on 26 August 2021. That decision, by Horton C in Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490 conveniently sets out the basis for which the original Development Consent was granted, including the imposition of various conditions. 2. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the Modification Application pursuant to s 4.55(2) of the EPA Act. The application is made by Armada Avalon Pty Ltd (Applicant) and the Respondent in the matter is Northern Beaches Council. 3. The application is to modify Development Consent DA2019/1260 issued by the Court on 26 August 2021. The Modification Application, that seeks changes to the Seniors Living development, can be summarised as follows: * Modification of the footprint of each of the approved four buildings; * Changes to glazing; * Changes to the configuration of waste and hydrant boosters; * Changes to the location of the heating and cooling units; * Tree removal; * Changes to the materials and finishes; * Changes to the roof over the central staircase; and, * Changes to the landscaping. * These modifications also necessitate the amending of Conditions 1a, 10B and 34 and the deletion of Condition 10. 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over the conciliation conference which was held on 14 October 2022. The parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties, during the conciliation conference process. Pursuant to s 34(3) of the LEC Act I must dispose of the proceedings in accordance with the parties' agreement, if the proposed decision the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 3. In deliberating, as to whether the decision is a decision that the Court could have made in the proper exercise of its functions, I have had regard to the following: 1. As this is a Modification Application, I must firstly be satisfied that the development to which the Development Consent, as modified, is "substantially the same" as the development for which Development Consent was originally granted. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. 2. The Statement of Environmental Effects (prepared by Sutherland and Associates Planning, June 2022), and the associated documents forming the application, set out the proposed modifications and the assessments required for the "substantially the same" test. They outline the minor nature of the changes to the building footprint and the other changes as outlined in para 3 above. On review of the minor amendments made to the application and because they have been demonstrated to be minor, I am also satisfied that the proposed development, as modified, passes the requisite test for "substantially the same". 3. In accordance with s 4.55 of the EPA Act the Modification Application was notified by the Respondent and subsequent submissions considered by the parties. The parties had regard to the submissions made in respect to the proposed development. I am satisfied that the notification requirements have been met. 4. There was no requirement to consult with the relevant Minister, public authority or approval body in respect to this application. 5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 6. The parties note that State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) was repealed on 16 November 2021 by the State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Notwithstanding, the SEPP HSPD continues to apply to the approved development, pursuant to Sch 7A cl 2(1)(d) and (2) of the SEPP Housing, as it was in force immediately before the repeal of the repealed instrument. 1. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent to the proposal is a decision that the Court could have made in the proper exercise of its functions. I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the agreement between the parties. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. The Modification Application seeking to modify Development Consent No. DA2019/1260 is approved and the Development Consent is modified as set out in Annexure "A". 3. The Modification Application to Development Consent No. DA2019/1260, as approved by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure "B". ………………….. S Harding Acting 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: 20 October 2022