Land and Environment Court New South Wales Medium Neutral Citation: Truland Development Pty Ltd v Georges River Council [2023] NSWLEC 1117 Hearing dates: Conciliation conference on 9 February 2023 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is upheld. (2) The Modification Application reference MOD 2022/0075 (and NSW Planning Portal reference PAN-209172) to modify Development Consent reference DA2021/0211 for the extension of the main lift core to access the approved Communal Open Space on Level 6, the deletion of the secondary lift originally approved between levels 5 and 6, the addition of 1 apartment to Level 6 and minor reconfiguration of the approved roofline to reduce overshadowing at 8 and 10 Lacey Street, Kogarah Bay, is approved in relation to Lots 8, 9 and 10 in Deposited Plan 17618, known as 2, 4 and 6 Lacey Street, Kogarah Bay NSW 2217 subject to conditions in Annexure A. Catchwords: MODIFICATION APPLICATION – residential flat building - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10, 8.11 Environmental Planning and Assessment Regulation 2021, ss 13, 23, 98, 99, 100, 113, 119 Georges River Local Environmental Plan 2021, cll 1.8, 2.2, 2.3, 4.3, 4.3A, 4.6 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, ss 17, 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy- No. 65 Design Quality of Residential Apartment Development 2002 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Arrange v Inner West Council [2019] NSWLEC 85 Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507 Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Tipalea Watson Pty Ltd v Ku-Ring-Gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 Texts Cited: Georges River Council, Community Engagement Strategy, 2019 Category: Principal judgment Parties: Truland Development Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: C Morton (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Sparke Helmore (Applicant) Georges River Council (Respondent) File Number(s): 2022/241040 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against Georges River Council's (Council) deemed refusal of Modification Application NSW planning portal reference PAN-209172 (Modification) and Council reference MOD 2022/0075 lodged with Council on 28 June 2022, being an application to modify development consent DA2021/0211 (DC) on land known as 2, 4 and 6 Lacey Street, Kogarah Bay NSW 2217 being the whole of the land contained in Lots 8, 9 and 10 in Deposited Plan 17618 (Site). 1. The proceedings have been commenced pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings is s 4.55(2) of the EPA Act and s 34(3)(a) and (b) of the LEC Act. 1. The DC granted consent to the Applicant to construct a 6 storey apartment building with 2 levels of basement parking and a roof-top communal open space subject to conditions on 21 February 2022. 2. The Modification was lodged with Council on 28 June 2022 and therefore Georges River Local Environmental Plan 2021 (GRLEP) is the applicable environmental planning instrument. Pursuant to cl 1.8(1) GRLEP repealed Kogarah Local Environmental Plan 2012. 3. The Site is located in an area along the Princes Highway that has recently seen new development controls pursuant to the former local environmental plan and GRLEP that allows development up to 21m in height and an FSR of 2.1:1. Accordingly the uplift in building height and density has meant the area has been, and continues to be, undergoing significant change from the former development of R2 Low Density Residential. 4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 9 February 2023. I presided over the conciliation conference. 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 Modification subject to the conditions in Annexure A pursuant to s 4.55(2) of the EPA Act. 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 this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as set out below: 1. As required by s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the Modification was lodged by Albert Zhang, Director of Truland Development Pty Ltd, which is the owner of the Site. 2. The Modification was lodged pursuant to s 4.55(2) of the EPA Act. 3. The modifications are shown on the amended architectural drawings, landscape plans, stormwater plans, structural drawings, and works-as-executed comparison drawings as referenced in condition 1 of the agreed conditions. Changes have also been made in the consolidated conditions of consent at Annexure A to the s 34 Agreement (Agreement). 4. Accompanying the Agreement at Annexure B is the Applicant's Bundle of Documents (Ex A: Applicant's Bundle of Documents), which includes a copy of the amended Modification plans for which the Applicant seeks approval in these proceedings. 5. The Modification was lodged to seek approval for the: 1. Extension of the main lift core to access the approved Communal Open Space area on Level 6 and delete the secondary lift that was approved to access Levels 5 and 6, resulting in a height of 1.465m in excess of the permissible height limit. The approved height was 21m; the height of the development proposed under the Modification is 22.465m (Ex A: Level 6 Plan and the Section NE-SW and SW-NE Drawings), 2. Addition of 1 apartment on Level 6 (Apartment 6.01), which has resulted in a minor increase to the Gross Floor Area from 2,391m2 (as approved) to 2,334m2 (as proposed under the Modification). The corresponding change to the Floor Space Ratio (FSR) is: 1.812: 1 (FSR as approved) to 1.919:1 (FSR as proposed under the Modification) (Ex A: Level 6 Plan), 3. Minor amendment of the floor-to-floor heights within the basement (Ex A: Section NE-SW Drawing), 4. Addition of 1 car space and 13 bicycle parking spaces on approved basement Level C1 (Ex A: Basement Level C1 Drawing), 5. Minor changes to the gradient of the ramp to the basement carparking (Ex A: Level 0 Ground Drawing and the Section Entry Ramp Drawing), 6. Minor reconfiguration of the approved roof line to reduce overshadowing impacts on adjoining properties (Ex A: Elevation Drawings), and 7. Planting and privacy screening around the northern and eastern sides of the outdoor private open space to Unit 6.01 on Level 6 (Ex A: Roof Plan). 8. The amended plans comprising the Modification also include plans depicting changes required by Condition 14(a), (b) and (c) of the DC, which is in the following terms: "Condition 14 Required design changes. The following changes are required to be made and shown on the Construction Certificate plans to the satisfaction of the Principal Certifier: a) The basement levels are to be reduced in size in the northern corner to achieve further deep soil, in the following manner: i) Basement Level C2 - deletion of parking spaces 19 and 20 ii) Basement Level C1 - deletion of parking spaces 1 (visitor/car wash) and loading bay b) The approved Landscape Plan is to be amended to provide additional planting in the deep soil area and this additional area is to be turfed and landscaped not paved. A minimum of four (4) additional Elaeocarpus Reticulatus are to be planted along the NW and NE boundaries in the corner of the site for additional screening. c) The garbage chute collection function on Basement Level Cl is to be enclosed and separated from the bin storage area to ensure resident safety." 1. The changes made to the Modification in response to Condition 14 of the DC are as follows: 1. In response to Condition 14(a), the basement levels have been reduced in size in the northern corner of the Site, to achieve a greater area of deep soil. Compliance with Condition 14(a) included the following consequential amendments: 2. On Basement Level C2, parking spaces 19 and 20 have been deleted, 3. On Basement Level C1, parking space 1 (visitor and car wash) and the loading bay have been deleted. The loading bay and carwash bay have been relocated to another car space on Level C1. 1. In response to Condition 14(b), the Landscape Plan has been amended to provide additional planting in the deep soil area, which is turfed and landscaped (not paved). A "Elaeocarpus Reticulatus" hedge has been added along the north west and north east boundaries of the Site to provide additional screening. 2. In response to Condition 14(c), the garbage chute collection function is now shown as being enclosed and separated from the bin storage area in a separate ventilated room on Level C1. 3. The Council considers that these changes, which have been made to the Modification to address the Council's concerns, are minor in nature. 1. Section 4.55(2)(a) is a jurisdictional prerequisite to the modification of a development consent, and provides that a consent authority may modify the consent if: 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) 1. The legal principles that apply to the test of "substantially the same" development in s 4.55(2)(a) of the EPA Act were summarised by Justice Pepper in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75, in which at [173] Her Honour observed that: "(1) First, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985…Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 440); (2) The modification power is beneficial and facultative (Michael Standley at 440); (3) The condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333 at [16]); (4) The applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) The term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) The formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably [draw] different conclusions (Scrap Realty at [19]); (7) The term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) In approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) The comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) A numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]). 1. These tests were considered by Acting Commissioner Clay in in Horseshoe Properties Pty Limited v Tweed Shire Council [2021] NSWLEC 1507 ("Horseshoe"). In Horseshoe, the Court held at [27], that (applying Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]): "[27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. [28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development." 1. According to Chief Justice Preston in Arrange v Inner West Council [2019] NSWLEC 85 ("Arrange"), the only "test" to be applied is that in the legislation and it is important not to substitute for the legislative test, one from case law: "[18] The first set of reasons is that Mr Arrange's argument on this ground is founded on an unsound basis. The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]. [19] Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)", but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development. [27] The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. [28] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry." 1. By reference to the Compliance Table in the Modified Statement of Environmental Effects prepared by Smith & Tzannes in support of the Modification, (SEE) contained in Ex A tab 2, the quantitative amendments to the Modification can be categorised as follows: 1. The maximum building height was approved at 21m; proposed is a height of 22.465m, 2. The FSR was approved at 1.812:1; proposed is an FSR of 1.919:1, 3. The GFA was approved at 2,391m2; proposed is a GFA of 2,334m2, 4. The only amendment to the apartment mix is a change to the number of 3 bedroom units; 5 were approved and 6 are proposed under the Modification. 5. The carparking layout was approved for 43 spaces including 1 loading bay. However, Condition 14(a) required the deletion of 3 carparking spaces and loading bay, which resulted in 39 spaces plus 1 relocated loading bay, as is proposed under the Modification. 1. A quantitative comparison of the Modification plans against the DA plans, reveals the following: 1. In response to Conditions 14(a) and (b) of the DC, the Site Plan drawing in the Modification has been amended to show an increase in the planted area originally approved under the DC to create a greater area of deep soil, which would likely ameliorate amenity impacts to occupants of the proposed development, whilst increasing vegetative screening to the adjoining properties to the north and west of the Site. 2. The Modification plan: Basement C2, shows the imposition of additional bike parking on the western aisle of the basement and the deletion of 2 car spaces at the north western corner, to accommodate the greater area of deep soil planting as required by Conditions 14(a) and (b) of the Consent. The basement footprint is otherwise unchanged. On the modified plans, Basement C2 reflects the requirement of Condition 14(c) where a separate compactor function has been added to the waste room. 3. In the Modification plan: Level 0 (Ground), the extent of the deep soil as required by Condition 14(b) of the Consent is shown, but otherwise the building footprint as approved in the corresponding drawing under the Consent, remains unchanged (Ex A tab 3). 4. Levels 1‑4 of the proposed development as shown in the Modification remain unchanged when compared to the DC (Ex A tab 3). 5. Modification plan Level 5 shows the secondary lift deleted, which has improved the layout and amenity of Unit 5.04 (Ex A tab 3). The inclusion in the DC of the secondary lift would require residents to exit the main lift on Level 5, and either take the stairs or the smaller secondary lift (with a lower lift overrun) to the communal open space approved on Level 6. Under the Modification, the extension of only 1 of the lifts to Level 6, provides a better level of amenity for future occupants by allowing a direct route of travel to the communal open space on that level. 6. Modification plan: Level 6, (Ex A tab 3) shows new residential Unit 6.01, which is proposed to be accommodated partly within part of the approved roof space on the western side of the building. According to the Compliance Table in the Modified SEE, proposed Unit 6.01 only results in minor increases to the Floor Space Ratio, Gross Floor Area and maximum height. 7. On both Level 6 plans under the Modification and the DC, the area of communal open space at 90m2 remains unchanged. In the Modification, proposed Unit 6.01 is contained within the existing and approved building footprint. 8. The extent to which the proposed built form on Level 6 extends beyond the approved building envelope is a result (in part) of the proposal to extend the lift to the Level 6 common area. The lift from Level 5 to Level 6 is deleted, and the existing lift servicing the building to Level 5 is extended to Level 6. 9. The roof plan in the Modification (Ex A tab 3) shows the deletion of the car exhaust, which was originally approved under the DC as an "architectural roof feature". The uppermost ridge height of the roof as shown in the Modification is RL41.76 as compared to RL40.26, as approved under the DC. 10. The north east to south west section in the Modification (Ex A tab 3) shows the extent of the increased roof height, to accommodate proposed Unit 6.01 and the revised roof levels as referred to above. The development shown in the Modification now exceeds the 21 metre height limit by 1.465m in order to accommodate the main lift overrun to service the Level 6 common open space. The only amendment to that section drawing is in the vertical rise of the height of the roof, which constitutes only a minor breach of the height of buildings development standard and, because of its proposed articulation, will likely result in reduced visual bulk. 11. The SW to NE section in the Modification (Ex A tab 3) shows the extent of the exceedance of the 21m height limit at RL41.26 (at the ridge) and 40.91 (at the adjoining boundary with 21 Wyuna Street). The corresponding drawing approved under the DC shows a ridge height of RL40.26 and a roof height of RL38.84 on the boundary adjoining 41 Wyuna Street. However, the proposed amendments to Level 6 are contained entirely within the approved building footprint and the numerical setbacks to 21 Wyuna Street and Lacey Street, also remain unchanged. These amendments are also reflected on the elevations submitted with the Modification. 1. In relation to a qualitative assessment, the specific amendments under the Modification would still provide some improved or at least the same level of amenity as that which was shown in the plans approved under the DC, for the following reasons: 1. The provision of an increased area of deep soil planting in the north western corner of the Site in response to conditions 14(a) and (b) of the DC, would likely ameliorate any privacy and overlooking amenity impacts for adjoining properties. The corresponding reduction in size of the basement levels in order to satisfy Condition 14(a) of the DC, could not have been an amendment that the Council would have anticipated to be substantially different from that which was approved. 2. Similarly, the Modification has adopted the amendments required by Condition 14(c) of the DC to enclose and separate from the bin storage area, the garbage chute and collection function, which would improve the internal amenity of the proposed development. 3. As a result of the removal of the secondary lift from the Modification, Unit 5.04, enjoys a better unit layout. 4. The addition of Unit 6.01 to Level 6 in the Modification will have negligible impacts upon surrounding development. Unit 6.01 is still a residential unit and it is contained within the approved building footprint and the extent to which it breaches the building height development standard is minor (1.465m). Because of the articulated and raked design of the roof above Unit 6.01, the extent of that breach will not likely result in any meaningful solar access or other amenity impacts to adjoining development, as referenced by the proposed elevational treatments submitted with the Modification (Ex A tab 3). To the extent that any impacts may result, they would be mitigated by the use of screen planting and a privacy screen proposed on the northern and western perimeters to the outdoor private open space area of Unit 6.01. 5. The raising of the roof to accommodate the lift overrun to provide access to the approved communal open space on Level 6, could not be considered to be an amendment that was substantially different from that which was approved under the DC. That is because the removal from the Modification of the secondary lift, was not likely a fundamental element to the building design; its function is more appropriately replaced by the operation of 1 lift. Qualitatively, the provision of a single lift to access a common open space that was approved on Level 6, would not render that portion of the Modification substantially different from that which was approved. 1. The amendments shown in the Modification (Ex A tabs 2 and 3) do not represent a radical transformation of that which was originally approved by the DC and the amendments to the physical features of the development as shown in the Modification, do not materially change the character of development as approved under the DC. As such, the amendments do not, from either a quantitative or a qualitative perspective, render the development substantially different from what was approved by the Consent. 2. There were no conditions imposed on the DC as a result of concurrence requirements. (s 4.55(2)(b) of the EPA Act). 3. The Modification was notified from 14 July 2022 until 28 July 2022 and was not renotified (s 4.55 2(c)-(d) of the EPA Act). One submission was received which was considered by Council. The parties agreed that renotification was not required because the amendments agreed during the s 34 Conciliation Conference do not have any environmental impact. 4. The parties agree that the development as modified will still be characterised as a "residential flat building" and the amendments are wholly contained (in the horizontal plane at least), within the building footprint approved by the DC. Those amendments do not involve a different use or even a degree of intensification of the approved use, that would otherwise render the development substantially different from that which was approved by the Consent. 5. Residential flat buildings are a permissible use in the R4 High density residential Zone under cll 2.2 and 2.3 of the GRLEP. 6. The proposed use is wholly compatible with the objectives of the R4 zone under the GRLEP. The parties have also taken into consideration the objectives of the height of buildings development standard pursuant to cl 4.3 of the GRLEP. 7. An amended BASIX certificate has been provided in the SEE in support of the Modification, a copy of which is contained in the Class 1 Application tab 30, in accordance with the requirement of s 4.55(3) of the EPA Act. 8. The parties are not aware of any other legal reasons preventing the Court from making the orders and approving the Modification. 1. 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 4.55(2) of the EPA Act and s 34(3) of the LEC Act for the following reasons: 1. The Modification was lodged with Council by the owner of the Site on 28 June 2022 pursuant to s 4.55(2) of the EPA Act and ss 98 and 99 of the EPA Regulation 2021. 2. The Modification was filed in Court by the owner of the Site pursuant to s 8.9 of the EPA Act and notified in accordance with s 119(1) of the EPA Regulation 2021. The appeal was lodged within the time provisions of ss 8.10 and 8.11 of the EPA Act. 3. The Site is zoned R4 High Density Residential under cll 2.2 and 2.3 of GRLEP. The DC was permissible in the zone, as is the Modification. 4. I have considered the submissions made by the parties in relation to the application of s 4.55(2) of the EPA Act. The majority of the parties' submissions have been repeated in par [7](7)-[7](20) above. In considering the Modification I have applied the tests as set out in s 4.55(2) of the EPA Act and further defined in Arrange by Preston CJ, and find: 1. The material and essential features of the Modification are the same as the DC. 2. The quantitative impact includes inter alia deletion of a 1-floor lift from Level 5 to Level 6 and extending the main lift to Level 6; together with a 3 bedroom apartment on Level 6 (6.01). Importantly there is a minor breach in the height control of 21m by 1.465m. That minor breach to the height control does not result in a breach of the FSR control (Modification FSR 1.919:1 vs a Control FSR of 1.2:1). 3. The qualitative benefits include an increase in bicycle parking spaces to 13 and 1 further car parking space; improved layout of Unit 5.04; increased amenity to all occupants of the building being able to access the community open space on Level 6 by 1 lift; and as a result of the articulated and raked design of the roof above Unit 6.01, there is unlikely to be solar access or other amenity impacts to adjoining developments. As I noted before, this area has been upzoned and is in the process of change. 4. Further, in applying cll 4.3 and 4.3A of GRLEP: 4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the impact of overshadowing, visual impact, disruption of views and loss of privacy on adjoining properties and open space areas, (c) to ensure an appropriate height transition between new buildings and— (i) adjoining land uses, or (ii) heritage items, heritage conservation areas or Aboriginal places of heritage significance. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. 4.3A Exceptions to height of buildings (1) The objectives of this clause are as follows— (a) to provide for building heights that establish the appropriate height for street frontages, buildings or groups of buildings, (b) to achieve well-proportioned buildings with articulated design and massing. 1. I note that the Modification's minor exceedance of the height control of 21m by 1.465m meets the objectives in cl 4.3(1) and the exceptions in cl 4.3A(1), and further complies with cl 4.6(1)(a) and (b) of GRLEP. The exception to the height control has been considered within the framework of s 4.55(2) of the EPA Act, and forms part of the consideration of whether the Modification is substantially the same development. 2. I determine that the Modification is substantially the same development as that contained in the DC. 3. There were no conditions imposed as a requirement of concurrence to the DC or general terms of approval. As a result no consultation is required pursuant to s 4.55(b) of the EPA Act. 4. An amended BASIX Certificate has been filed (Class 1 Application tab 30) dated 30 April 2022 being Certificate number 119247M in accordance with s 4.55(3) of the EPA Act, the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and s 100(3)(a) of the EPA Regulation 2021. Whilst minor amendments to the plans have been agreed by the Council during the s 34 Conciliation Conference in accordance with Council's Community Engagement Strategy adopted October 2019 at p42, those minor amendments are not such as to require a second Amended BASIX Certificate. 5. In relation to public interest, Council did receive 1 submission after notifying the Modification. Council considered the submission. I considered the submission in accordance with s 4.55(2)(d) of the EPA Act and determined that the overall improvement to the DC by approving the Modification is in the public interest. 6. I accept the parties' oral submission (supported by an Updated Verification statement) that the Modification generally complies with State Environmental Planning Policy No 65--Design Quality of Residential Apartment Development 2002 particularly in relation to Unit 6.01 on Level 6 and the overall design and impact on surrounding development. 1. The DC was determined by the Georges River Local Planning Panel on 21 February 2022. I have considered the reasons set out in the Amended Electronic Report by the Panel in determining to grant approval to the Modification. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions pursuant to s 4.55(2) of the EPA Act, 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 make, and have not made, any assessment of the merits of the Modification against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act. 3. The Court notes: 1. Georges River Council as the relevant consent authority has agreed, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the application for modification of development consent reference DA2021/0211 granted by Georges River Council on 21 February 2022 by modifying Level 6 to include a lift overrun and additional apartment No. 6.01, deletion of the secondary lift between Levels 5 and 6, together with amendment to the floor to floor levels and basement entry ramp to ensure all habitable space is under the height limit, as detailed in the plans and drawings referred to in Annexure A. 2. The Applicant is not required to lodge the Amended Modification on the NSW planning portal pursuant to s 13(6) of the Environmental Planning and Assessment Regulation 2021. 3. The Modification plans, drawings and documents listed in Annexure A were filed in the Court on 8 February 2023 (Ex A). 1. The Court orders: 1. The appeal is upheld. 2. The Modification Application reference MOD 2022/0075 (and NSW Planning portal reference PAN-209172) to modify Development Consent reference DA2021/0211 for the extension of the main lift core to access the approved Communal Open Space on Level 6, the deletion of the secondary lift originally approved between Levels 5 and 6, the addition of 1 apartment to Level 6 and minor reconfiguration of the approved roofline to reduce overshadowing at 8 and 10 Lacey Street, Kogarah Bay , is approved in relation to Lots 8, 9 and 10 in Deposited Plan 17618, known as 2, 4, and 6 Lacey Street, Kogarah Bay NSW 2217 subject to conditions in Annexure A M Peatman Acting Commissioner of the Court Annexure A Notes Ex A: Applicant's Bundle of Documents filed 8 February 2023 ********** 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: 17 March 2023