Land and Environment Court New South Wales Medium Neutral Citation: Lombardi v Bayside Council [2023] NSWLEC 1184 Hearing dates: Conciliation Conference 17 January, 15 February and 14, 24 and 30 March 2023 Date of orders: 20 April 2023 Decision date: 20 April 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent no. DA2019/250 is modified in the terms in Annexure A. (3) Development consent no. DA2019/250 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – modification of consent – conciliation conference – agreement between the parties - orders Legislation Cited: Bayside Local Environmental Plan 2021 Environmental Planning and Assessment Act 1979, s 4.15, 4.56, 4.70 Environmental Planning and Assessment Regulations 2000, cl 121B Land and Environment Court Act 1979, s 34 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index) 2004 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Cases Cited: Lombardi v Bayside Council [2020] NSWLEC 1397 SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 Texts Cited: Rockdale Development Control Plan 2011 Category: Principal judgment Parties: Daniel Lombardi (Applicant) Bayside Council (Respondent) Representation: Counsel: A Gough (Solicitor)(Applicant) A Seton (Solicitor)(Respondent) Solicitors: Storey & Gough (Applicant) Marsdens Law Group (Respondent) File Number(s): 22/295302 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application No. MDA-2022/90 to modify Development Consent No. DA-2019/250 (the Development Consent) granted by the Land and Environment Court on 27 August 2020 (Lombardi v Bayside Council [2020] NSWLEC 1397) for the demolition of existing structures and construction of a two-storey boarding house containing eight single rooms (the Proposed Modification) at 9 Fleet Street, Carlton legally described as Lot 1 in DP 921700 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 January, 15 February, 14 March, 24 March and 30 March 2023. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement that the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) was not applicable to the Proposed Modification for two reasons, being firstly that the Development Consent did not include an affordable housing component as defined by the EPA Act where "affordable housing" means "housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument". Secondly, the Proposed Modification is not consistent with the definition of "boarding house" used in SEPP Housing from the Dictionary, Standard Instrument – Principal Local Environmental Plan which reads as follows: "boarding house means a building or place— (a) that provides residents with a principal place of residence for at least 3 months, and (b) that contains shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (c) that contains rooms, some or all of which may have private kitchen and bathroom facilities, and (d) used to provide affordable housing, and (e) if not carried out by or on behalf of the Land and Housing Corporation—managed by a registered community housing provider, but does not include backpackers' accommodation, co-living housing, a group home, hotel or motel accommodation, seniors housing or a serviced apartment." 1. The Applicant prepared an Amended Modification Application in response to this agreement and in order to address the matters raised in the Statement of Facts and Contentions filed 28 November 2022 (SOFAC). 2. On 23 March 2023, the Respondent agreed to amendments to the modification application proposed by the Applicant. The nature of the change to the Development Consent as a result of the Proposed Modification is now as follows: 1. Condition 2: The architectural plan and landscape plans have been amended as follows: Ground floor level Deleted entry doors to Rooms 2 and 3 and delete pedestrian pathway within the setback area. Front setback area re-established with landscaping; Internal hallway leading to Rooms 2, 3 and 4 reinstated with a reduction in the size of boarding rooms; Footpath along Cumberland Street extended to travel to the vehicular driveway; Entrance to Fleet Street amended with an increase in front setback for a portion of the façade. Amendment of bathroom allocation for Rooms 3 and 4. Communal room increased in size from 17.28m2 to 21.7m2. Communal room floor level reduced by 200mm to RL 40.25 with an increase in ceiling height in communal room. Communal open space level reduced; Building footprint reduced to the rear along the communal room and Room 9 and increase in rear setback; Private open space increased in area from 39m2 to 42.9m2; First floor level Reduced depth of balconies to Room 6 & 7; Deleted windows along hallway to S-E Elevation dormer; FSR reduced from 0.54:1 to 0.5:1; Landscaping Landscaped area increased from 131sqm to 133sqm; Four trees added to Cumberland Street front setback adjacent to Rooms 2, 3, 4; Trees added along the S-E setback to shared boundary with No. 7 Fleet Street; Two trees added to Xenia Ave setback back/land acquisition zone. 1. Condition 21: The architectural plan set at Sheet 19037DA02 and DA03, Revision J increases the extent of footpath construction within Cumberland Road to travel to the vehicular driveway. 2. Condition 27: The Proposed Modification no longer seeks the deletion or modification of condition 27. 3. Condition 69: The Proposed Modification no longer seeks the deletion or modification of condition 69. 1. 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 of the Development Consent. 2. 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. 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 parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to approve a modification to a development consent. 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 to be the terms of s 4.56 of the EPA Act to modify a consent. 4. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I now summarise as relevant below. 5. The owners of the Site are Mr Daniel Lombardi and Mrs Vanessa Lombardi. The application form reference number PAN-233584 makes the Owner's Consent declaration at page 1 filed with the Class 1 Application at Tab 1. 6. The power of the Court under s 4.56 of the EPA Act to determine the modification is available if: 1. The Court is satisfied that the development to which the consent as 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 (if at all); and 2. The application has been notified in accordance with the regulations and relevant development control plan; and 3. The application has been notified to each person who made a submission in respect of the development consent; and 4. It has considered any submissions received. 5. It has considered such matters referred to in s 4.15(1) as are of relevance to the proposed development. 1. The architectural plans approved by the Development Consent are filed with the Court. Quantitatively, the Proposed Modification increases the number of boarding rooms by 1 and increases the amount of gross floor area by 10m2. Externally, the Proposed Modification results in a slight reduction in the length of the approved building and increases in setback to front and rear, which can be seen by the red dashing in the extracts reproduced in Fig 1 and Fig 2 below. Fig 1: Extract from Architectural North-West Elevation Drawing No 19037DA04 Rev J Fig 2: Extract from Architectural South-East Elevation Drawing No 19037DA04 Rev J 1. Qualitatively, the approved development will not change in a material sense, with the development remaining a small scale boarding house possessing the same essential characteristics. I am satisfied that and agree with the Council Assessment Report at folio 112, located at Tab 2, that the Proposed Modification involves "minor changes within the approved development" and that the "development to which consent as modified relates is substantially the same development as that for which consent was originally granted". 2. I am satisfied that the Proposed Modification was notified in accordance with the Rockdale Development Control Plan 2011 (RDCP) and that all persons who submitted objections to the initial development application were included in this notification. I have considered the summary of the concerns raised as provided at particular (d) of Contention 8 in the SOFAC. In addition, the Amended Modification Application was notified to adjoining properties. The submissions received in response to the notification of the Modification Application and Amended Modification Application do not raise any jurisdictional issue that would prevent the Court granting consent to the application. 3. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was repealed on 26 November 2021 by the SEPP Housing. The SEPP Housing does not contain any savings provisions in relation to the application of SEPP ARH. As such, the SEPP ARH does not impose any jurisdictional impediment to the grant of approval of the Proposed Modification. 4. The Proposed Modification incorporates BASIX Certificate No. 1314731S_02 dated 24 March 2023 in accordance with the State Environmental Planning Policy (Building Sustainability Index) 2004. 5. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, the Court must not approve the Proposed Modification unless it has considered whether the land is contaminated and if contaminated, it is satisfied that it will be appropriately remediated. I have noted that there was an assessment that was undertaken as part of the Development Consent and that it was held that the site was suitable it its present state given its history of being continually used for residential purposes (Lombardi v Bayside Council [2020] NSWLEC 1397 at [4(5)]). 6. The Development Consent includes works within the vicinity of electricity infrastructure, being overhead powerlines on both the Fleet Street and Cumberland Street frontages as referred to in s 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). Pursuant to s 2.48(2) of the Transport and Infrastructure SEPP, the consent authority must give written notice to the electricity supply authority and take into consideration any response. I am satisfied that the Proposed Modification was referred to Ausgrid, and I note that a response was received by the Respondent confirming that there were no objections to the Proposed Modification. 7. The Rockdale Local Environmental Plan 2011 (RLEP 2011) was repealed on 27 August 2011 on the commencement of the Bayside Local Environmental Plan 2021 (BLEP 2021). The BLEP 2021 does not contain any relevant savings provision therefore the BLEP 2011 imposes no jurisdictional impediment to the grant of approval of the Proposed Modification. 8. The Site is zoned R2 Low Density Residential pursuant to the BLEP 2021 where boarding houses are prohibited in the R2 zone. 9. The Court's power to modify a development consent is derived from s 4.56 of the EPA Act, which is a complete source of power (SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65 at [31]). The effect of the Development Consent is saved from the operation of the BLEP 2021 and its prohibition of boarding houses in the R2 zone (s 4.70, EPA Act). Similarly, the development standards contained within the RLEP 2021 are not jurisdictional barriers to the grant of approval to the Proposed Modification. In any event, I note that the Proposed Modification is compliant with the following: 1. the height standard of 8.5 metres, having a building height of 6.2 metres; 2. the FSR standard of 0.5:1, having a FSR of 0.5:1. 1. For the reasons set out above in this judgment, 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. 2. 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. Notations: 1. The Court notes that: 1. Bayside Council as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulations 2000, to the applicant amending modification application No. MDA-2022/90 with the inclusion of the following documents: Architectural Plans prepared by Kink Architects: • Drawing No. 19037DA02, Revision J, dated 27 January 2023 • Drawing No. 19037DA03, Revision J, dated 27 January 2023 1. • Drawing No. 19037DA04, Revision J, dated 27 January 2023 • Drawing No. 19037DA05, Revision J, dated 27 January 2023 • Drawing No. 19037DA09, Revision B, dated 14 February 2023 2. Landscape Plans prepared by Michael Siu, dated 14 February 2023, Revision E and drawing No.s L01/2 and L02/2 3. BASIX Certificate No. 1314731S_02, dated 24 March 2022 prepared by Kink Architects. 1. The amending documents have been filed with the Court on 28 March 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent no. DA2019/250 is modified in the terms in Annexure A. 3. Development consent no. DA2019/250 as modified by the Court is Annexure B. E Espinosa Commissioner of the Court 295302.22 Annexure A (199130, pdf) 295302.22 Annexure B (263825, 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: 20 April 2023