Land and Environment Court New South Wales Medium Neutral Citation: Ausbay Construction Pty Ltd v Inner West Council [2022] NSWLEC 1617 Hearing dates: Conciliation conference on 14 October 2022 Date of orders: 01 December 2022 Decision date: 01 December 2022 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) Leave is granted to the applicant to amend the application and to rely on the amended materials listed under condition 4 of the consolidated conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development Consent DA/2020/0051 is modified by Modification Application No. MOD/2021/0555, as amended, for changes to the approved residential flat building, including the addition of a substation; relocation of fire stairs; and changes to the pedestrian entry, materials, waste management and the internal vehicular manoeuvring areas; on land identified as Lot 336 in Deposited Plan 629602 and known as 328-336 Liverpool Road, Ashfield, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – changes to an approved residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2021, Sch 6, cl 3 Environmental Planning and Assessment Regulation 2000, cl 121B Inner West Local Environmental Plan 2022, cl 1.8A Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development Category: Principal judgment Parties: Ausbay Construction Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2022/213379 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 No. MOD/2021/0555 for changes to the approved residential flat building (DA/2020/0051, the development consent), including the addition of a substation; relocation of fire stairs; and changes to the pedestrian entry, materials, waste management and the internal vehicular manoeuvring areas (the proposal), at 328-336 Liverpool Road, Ashfield (the site), by Inner West Council (the Council). 2. 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 14 October 2022. I presided over the conciliation conference. 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. 3. 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(2) of the EPA Act to modify the development consent. 4. There are preconditions to the exercise of power to modify a development consent pursuant to s 4.55(2)(2) of the EPA Act. Background 1. The Council granted the development consent on 8 September 2020 for the demolition of existing structures and construction of a six-storey residential flat building comprising 73 units, above two levels of basement car parking and associated works. The Council modified the development consent (Modification Application MOD/2021/0555) on 2 July 2021, including car parking and floor plan changes. 2. The application was lodged on 22 December 2021 and was refused on 27 April 2022. The appeal was commenced on 21 July 2022. A conciliation conference, commencing with a site view, was held on 2 September 2022. I presided over the conciliation conference. The conciliation conference was terminated on 30 September 2022. 3. The proposal was amended on 7 October 2022 with the consent of the Council. The Environmental Planning and Assessment Regulation 2000 continues to apply to the application, because the application was lodged before the 1 March 2022 and the appeal had not been determined at the commencement of the new regulation on 1 March 2022 (cl 3 of Sch 6 to Environmental Planning and Assessment Regulation 2021). Under cl 121B of the Environmental Planning and Assessment Regulation 2000, the modification application can be amended, with the agreement of the consent authority, by lodging the amended application on the NSW planning portal. The amended application was lodged on the NSW planning portal on 14 October 2022. Consideration 1. Section 4.55(2) of the EPA Act is in the following terms: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. 1. I am satisfied that the amended application is substantially the same development as the development for which consent was originally granted and before the consent as originally granted was modified, because a qualitative and quantitative comparison of the original development and the amended application shows that the amended application does not radically transform the originally approved development. 2. I accept the Council's submission that the proposal has been notified in accordance with the requirements. 3. The site is zoned B4 Mixed use and R3 Medium Density Residential pursuant to the Ashfield Local Environmental Plan 2013 (LEP 2013) (cl 1.8A of Inner West Local Environmental Plan 2022). The objectives of the zones, to which regard must be had, are: Zone B4 Mixed Use 1 Objectives of zone • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To enhance the viability, vitality and amenity of Ashfield town centre as the primary business activity, employment and civic centre of Ashfield. • To encourage the orderly and efficient development of land through the consolidation of lots. Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. I accept the Council's submission that the proposal does not raise any issues under cl 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 that were not previously considered as part of the assessment of the development application. 2. I accept the Council's submission that the proposal does not raise any issues under State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development that were not previously considered as part of the assessment of the development application. I accept the Council's submission that the proposed changes to the finishes and materials are acceptable. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 7 October 2022 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. Leave is granted to the applicant to amend the application and to rely on the amended materials listed under condition 4 of the consolidated conditions of consent at Annexure A. 2. The appeal is upheld. 3. Development Consent DA/2020/0051 is modified by Modification Application No. MOD/2021/0555, as amended, for changes to the approved residential flat building, including the addition of a substation; relocation of fire stairs; and changes to the pedestrian entry, materials, waste management and the internal vehicular manoeuvring areas; on land identified as Lot 336 in Deposited Plan 629602 and known as 328-336 Liverpool Road, Ashfield, subject to the consolidated conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court ********** Annexure A Annexure B Amended Plans 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: 01 December 2022