Land and Environment Court New South Wales Medium Neutral Citation: APPWAM Pty Ltd v Inner West Council [2022] NSWLEC 1728 Hearing dates: Conciliation conference on 2 and 20 December 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) Leave is granted to the Applicant to amend the Modification Application MOD/2021/0565 and to rely on the following amended documents: (a) Architectural Plans dated 16/12/2022, Sheets H101-H126, Rev H (b) Landscape Plans dated 12/12/2022, dwg s34.L101 & L103, Rev A (c) Plan of Management dated 19 December 2022 (2) The appeal is upheld. (3) Development Application 2020/0505 is modified in the terms set out at Annexure A. (4) Development Application 2020/0505 as modified by the Court is set out at Annexure B. Catchwords: DEVELOPMENT APPLICATION: boarding house development in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B Environmental Planning and Assessment Regulation 2021 Sch 6, s 3 Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 4.6, 5.10 Land Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2021 Category: Principal judgment Parties: APPWAM Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Cole (Solicitor) (Applicant) G Christmas (Solicitor) (Respondent) Solicitors: Messenger & Messenger (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2022/231065 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 refusal by Inner West Council (the Respondent) of modification application No. MOD/2021/0565 seeking consent for modifications to development consent DA/2020/0505 (the original consent) for boarding house development at 52-54 Charlotte Street, Ashfield (the site). 2. The modification application seeks the following amendments to the boarding house approved by the original consent: 1. Reduction in the number of boarding rooms from 54 to 50 and a new on-site manager's room (total 51 rooms). 2. Addition of a new third storey to the rear (western) portion of the development. 3. Internal reconfiguration of the ground floor, Level 1, Level 2, and Level 3 layouts, resulting in an increase in the total number of adaptable rooms. 4. Increase in the size of private open space balconies. 5. Relocate the approved waste storage area from ground level into the basement and proposed on-site waste collection by an appointed private contractor (instead of Council service). 6. Reconfiguration of basement levels to accommodate manoeuvring and loading for a Small Rigid Vehicle, relocation and reconfiguration of parking spaces for cars, motorcycles and increase the number of bicycle spaces; and 7. Changes to the layout of the ground floor corridor and internal landscape components. 1. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 ('LEC Act') on 2 December 2022, which commenced with an onsite view after which the conciliation conference, at which I presided, continued at Court. 2. At the conciliation conference, the parties agreed certain amendments that, in the view of the Respondent at the commencement of proceedings, were capable of resolving the matters in contention, subject to the provision of further detail that necessitated the further amending of plans and other documents, and for which I granted an adjournment. 3. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 121B of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulation'). 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 December 2022. 5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development 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. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [17]. 7. 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. 8. Firstly, as the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates, is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons: 1. In general terms, the modification application is for a boarding house in substantially the same form and scale as originally approved, other than an addition to the rear which has been designed to be substantially contained within a roof form, amendments to internal layouts and common spaces to improve amenity and reduce the number of rooms to enable an increase in size of some rooms to increase the number of double rooms in lieu of single rooms. 2. Quantitatively, there is a reduction in the number of boarding rooms, and the number of car parking spaces on site, a minor reduction in gross floor area and floor space ratio. Conversely, there is an increase in landscaped area, internal and external communal area. 3. Qualitatively, the modification application is for a boarding house in substantially the same form and scale as originally approved, other than an addition to the rear which has been designed to appear as part of the roof, amendments to internal layouts and common spaces to improve amenity and reduction in number of rooms to enable increase in size of some rooms to increase number of double rooms rather than single rooms. 4. Additionally: * Shadow diagrams demonstrate there is no significant difference in relation to overshadowing from the original approval. Privacy screen details have been provided to address privacy concerns raised by Council in relation to the balconies. * The parties have agreed to a condition in relation to a restriction on title requiring waste to be picked up by a private waste collector to address contentions raised by the Respondent in relation to waste vehicles accessing the Site. 1. The modification application was notified by the Respondent between 13 January 2022 and 27 January 2022 in accordance with s 4.55(1A)(c) of the EPA Act. In response to the notification of the application, two submissions were received. I have considered the issues raised in those submissions. 2. Pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following: 1. The site is located in the R3 Medium Density Residential zone according to the Inner West Local Environmental Plan 2022 (IWLEP), in which boarding house development is permitted with consent. 2. The maximum allowable height is 12.5m under cl 4.3 of the IWLEP. The original consent was for a maximum height of 13.6m above existing ground level, for which a written request, prepared in accordance with cl 4.6 of the IWLEP justifying the contravention of the height of buildings development standard was provided and upheld. The original consent was granted notwithstanding the height non-compliance. I note the modification application does not seek to increase the non-compliance with the height standard for the proposal. 3. The maximum allowable Floor Space Ratio under cl 4.4 of the IWLEP, together with the bonus applicable to the site under the State Environmental Planning Policy (Affordable Rental Housing) 2009 is 1.2:1. A floor space ratio of 1.17:1 is proposed, being less than 1.18:1, the subject of the original consent. 4. While the site is not identified as a site of heritage significance, and it is not within a heritage conservation area, two adjoining sites to the west of the site are identified as heritage items, at 29-31 and 35 Bland Street, Ashfield. The impact of the Modification Application on the adjacent heritage items has been considered in a heritage report prepared by Architectural Projects dated November 2022, having regard to cl 5.10 of the IWLEP. The amended plans resulting from conciliation discussions include amended materials, finishes and roof form to the upper level of the proposal at the rear to enable an appropriate transition to the heritage items which the parties agree is an acceptable impact on the heritage items, when views to and from those sites are considered. 5. State Environmental Planning Policy (Housing) 2021 does not apply to the modification application as the modification is to an original consent granted prior to the commencement of the Housing SEPP. 6. The original consent was granted by the Respondent on 5 November 2020. I have considered the reasons given by the Respondent for the grant of the consent that is sought to be modified, in accordance with s 4.55(3) of the EPA Act, and I find no reasons that would preclude the modification of the original consent. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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. Pursuant to cl 121B of the EPA Regulation, the Applicant has amended the Modification Application MOD/2021/0565 with the agreement of the Respondent. 2. Pursuant to s 3(2), Sch 6 of the Environmental Planning and Assessment Regulation 2021, as the modification application was made, but not finally determined before 1 March 2022, there is no requirement for amendments to the modification application to be lodged on the NSW Planning Portal under the EPA Regulation. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend the Modification Application MOD/2021/0565 and to rely on the following amended documents: 1. Architectural Plans dated 16/12/2022, Sheets H101-H126, Rev H. 2. Landscape Plans dated 12/12/2022, dwg s34.L101 & L103, Rev A. 3. Plan of Management dated 19 December 2022. 1. The appeal is upheld. 2. Development Application 2020/0505 is modified in the terms set out at Annexure A. 3. Development Application 2020/0505 as modified by the Court is set out at Annexure B. …………………… T Horton Commissioner of the Court Annexure A (223802, pdf) Annexure B (345866, pdf) ********** 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: 23 December 2022