Land and Environment Court New South Wales Medium Neutral Citation: Metrocorp Developments and Construction Pty Limited v Canterbury-Bankstown Council [2023] NSWLEC 1427 Hearing dates: Conciliation conference on 2 August 2023 Date of orders: 02 August 2023 Decision date: 02 August 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The application is approved. (2) Development consent no. DA256/2016 is modified in the terms at Annexure A. (3) Development consent no. DA256/2016 as modified by the Court is at Annexure B. (4) The exhibits are retained. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.53, 4.55 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design and Quality of Residential Apartment Development Cases Cited: Gee N Gee Pty Limited v Canterbury-Bankstown Council [2017] NSWLEC 1432 Texts Cited: Building Code of Australia Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Metrocorp Developments and Construction Pty Limited (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: A Hemmings (Applicant) G Farland (Respondent) Solicitors: Corrs Chambers Westgarth (Applicant) McCullough Robertson (Respondent) File Number(s): 2022/313370 Publication restriction: Nil Judgment 1. These proceeding arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, for the modification of a development consent (DA256/2016) granted by the Court on 11 August 2017 in Gee N Gee Pty Limited v Canterbury-Bankstown Council [2017] NSWLEC 1432 (the 2017 consent). The proposal 1. The 2017 consent approved the construction of a six-storey mixed use development containing two ground floor commercial tenancies, 47 residential units and two levels of basement car parking at Lots 21 and 22 in DP3970, known as 349 and 355-357 Beamish Street, Campsie (site). 2. The applicant now seeks approval for the following modifications to the development: 1. increase the floor-to-floor heights by between 0.1m to 0.2m per floor, resulting in an overall height increase of: 1. 930mm to the lift overrun; and 2. 750mm to the roof line; 1. reduce the number of residential apartments by two from 47 to 45 and reduce the number of parking spaces by two from 69 to 67; 2. reconfigure the basement to increase the size of the storage areas; and 3. increase the size of the fire stairs and residential lift shaft to accommodate the increase in building height. 4. add windows within the western façade to each of units 24, 33, and 41; 5. add a landscape wall and hob as per the approved Landscape Plan Level 1 (Drawing No. 1379.GD.01 Issue A) dated 19 April 2017; 6. add double doors within the ground floor level corridor to separate the commercial waste room (for Commercial Unit 2) from the foyer; 7. reduce the width of the slab above the loading dock from 580mm to 400mm to enable the loading dock to achieve a clearance of 3500mm; 8. make amendments to the non-accessible area above the basement ramp; and 9. increase in the width of the slab by 150mm in the non-accessible area from units 36 to 40 and units 36 to 55. Background 1. The proceedings were initially listed before me for a 2-day hearing however, on the second day the parties sought an adjournment to allow the matter to be reallocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). 2. The Court accommodated the parties' request, and the conciliation took place before me on 2 August 2023. 3. During the conciliation conference, the parties reached agreement as to the terms of a decision that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the 2017 consent in accordance with the amended application subject to conditions. 4. 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. 5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. My focus is on the legality of the decision. To that end, the parties have identified in a jurisdictional submission accompanying the s34 agreement how the jurisdictional preconditions in these proceedings have been satisfied. Planning framework 1. The statutory controls of relevance to the application are the: 1. EPA Act; 2. Environmental Planning and Assessment Regulation 2021 (EPA Regulation); 3. Canterbury Local Environmental Plan 2012 (CLEP); 4. Canterbury Development Control Plan 2012 (CDCP); 5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP); and 6. State Environmental Planning Policy No. 65 – Design and Quality of Residential Apartment Development (SEPP 65). 1. After a consideration of the application and the evidence against the statutory framework I am satisfied that I have power to make the agreed orders proposed by the parties. In that regard I note the following: Owners' consent 1. A copy of the landowners' consent is provided at Tab 2 of the Class 1 Application filed 20 October 2022. The modification application has been made by Metrocorp Developments and Construction Pty Ltd, with the consent of the owners of the site to which the application relates in accordance with s 23(1)(b) of the EPA Regulation. Section 4.53(1)(c) 1. Section 4.53(1)(c) of the EPA Act extends the duration of a development by two years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before 25 March 2020, and had not lapsed at 25 March 2020. 2. In this case, I am satisfied that pursuant to s 4.53(1)(c) the original five-year lapsing date of the 2017 consent, being 11 August 2022, has been extended by a further two years to 11 August 2024. Section 4.55 1. The applicant submits that the requirements under s 4.55(2) have been satisfied. The section provides: (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. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. After a comparison I am satisfied that the 2017 consent, as proposed to be amended by this modification application, is substantially the same development as the development for which consent was originally granted, as required by s 4.55(2) of the EPA Act. When compared to the 2017 consent: 1. the overall building envelope, despite the minor increase in height, is consistent with the 2017 consent; 2. the proposed modification results in a development that is quantitatively and qualitatively substantially the same as the original development and albeit the amendments improve a number of the original design elements to increase the amenity for the residents and the neighbouring developments, in particular; 1. the size (FSR, setbacks, building height) and configuration of the approved building are substantially the same; 2. the size and configuration of the residential apartments and commercial suites are substantially the same; 3. the design and external appearance of the approved building is substantially the same; 4. the vehicle and pedestrian access points are substantially the same; 5. the size, location and configuration of the basement parking levels are substantially the same; 6. the use and function of the approved building are substantially the same; 7. the nature and extent of environmental impacts on the local area are substantially the same; 1. the fundamental characteristics and essence of the proposed development remains unchanged. In particular, the proposed modification, as amended: 1. remains a development for shop top housing comprising residential apartments and ground floor commercial tenancies with two levels of basement car parking; 2. maintains a loading bay with minimum clearance for a small rigid truck; 3. maintains compliance with the Apartment Design Guide (ADG) amenity provisions (i.e. minimum floor to ceiling heights and solar access); and 4. maintains the same separation between buildings. 1. In forming that view, I rely on the agreed evidence of the town planning and urban design experts (JER Planning and Urban Design at pars 30-32), and the Statement of Environmental Effects dated 15 August 2022 (at Tab 4 of the Class 1 Application). 2. Section 4.55(3) of the EPA Act provides that, in determining an application for the modification of a development consent, the consent authority must take into consideration: 1. such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application; and 2. the reasons given by the consent authority for the grant of the consent that is sought to be modified. 1. I am advised that in accordance with s 4.55(2)(c) of the EPA Act the original application was notified in December 2022 and five (5) submissions of objection were received (Ex 3 Tab 31). Following amendment, the application was renotified to adjoining and nearby landowners on 8 and 14 March 2023 and on 21 July 2023. It is the Council's position that the modification application (as amended) results in no greater impact than the modification application as originally notified. 2. In particular, the Council submits that: 1. Height of buildings exceeds limit – The increase in the height of the building has been assessed by the town planning and urban design experts and is agreed to be appropriate (Ex 6 at par 28), having regard to the relevant environmental planning consideration set out in Section 4 of the Addendum Statement of Environment Effects dated 30 June 2023 (Ex 6 at Annexure D). 2. Insufficient communal open space – The communal open space is unchanged from the development approved in the 2017 consent and has been assessed in the Design Verification Statement dated 31 July 2023 (DVS) (Ex B Tab 4 p 7). 3. Insufficient deep soil zones – The deep soil zones are unchanged from the development approved in the 2017 consent and has been assessed in the DVS (Ex B Tab 4 p 8). 4. Insufficient habitable room separation for visual privacy – The building separation complies with the ADG and otherwise the proposal remains unchanged with the exception of internal separation distances at level 5 between units 42 and 43 which have in fact increased (Ex B Tab 4 p 9). 5. Non-compliant bicycle parking – The bicycle parking is unchanged from the development approved in the consent and is compliant with the DCP (Ex B Tab 4 p 10). 6. Insufficient detail regarding cross ventilation – The details of the cross-ventilation is included in the Further Amended Plans at DA 1405 Rev F and complies with the ADG (Ex B Tab 4 p 11). 7. Insufficient storage within apartments – The storage provision has been further assessed in the Storage and Parking Allocation Schedule prepared by Urbanlink dated 1 August 2023 and demonstrates compliance with the ADG (Ex 12 at Annexure C). 8. Inappropriate vertical articulation within apartments – The vertical articulation of the building is unchanged from the development approved in the consent and is otherwise assessed as appropriate (Ex B Tab 4 p 6). 9. Insufficient waste services for on-site collection – The application, as further amended (Ex B Tab 1 drawing DA-102 Rev K), has been substantially improved with respect to waste management with the increased provision of bins, bulky waste storage and improved access to that approved in the 2017 consent (Ex D). Further, detailed conditions have been agreed between the parties for amendments to the draft Waste Management Plan prior to the issue of a Construction Certificate (Ex 5). 1. In forming that view, the Council has considered: 1. the provisions of the CLEP, BASIX SEPP and SEPP 65 (s 4.15(1)(a)(i) of the EPA Act); 2. the provisions of CDCP (s 4.15(1)(a)(iii) of the EPA Act); 3. the relevant provisions of the EPA Regulation (s 4.15(1)(a)(iv) of the EPA Act); 4. the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality (s 4.15(1)(b) of the EPA Act); 5. the suitability of the site for the development (s 4.15(1)(c) of the EPA Act); 6. all submissions made in respect of the Class 1 Application (s 4.15(1)(d) of the EPA Act); and 7. the public interest (s 4.15(1)(e) of the EPA Act). 1. Ultimately, the Council informs me that the modification application, as amended, satisfies all applicable provisions of the CLEP, excluding cl 4.3 (Height of buildings) of the CLEP. Specifically: 1. The site is zoned B2 Local Centre under the CLEP. In this zone, shop top housing is permitted with development consent. 2. The proposed development meets the objectives for development in the B2 zone for the purposes of cl 2.3(2) of the CLEP. 3. The site is not subject to a floor space ratio development standard on the Floor Space Ratio Map for the purposes of cl 4.4 of the CLEP. 4. The site does not contain a heritage item, is not in a heritage conservation area, and is not in the immediate vicinity of a heritage item or heritage conservation area for the purposes of cl 5.10 of the CLEP. 5. The site is not within a flood planning area shown on the Flood Planning Map for the purposes of cl 5.21 of the CLEP. 6. The site is not within an acid sulfate soils area shown on the Acid Sulfate Soils Map for the purposes of cl 6.1 of the CLEP. 1. Pursuant to cl 4.3 of the CLEP, the maximum building height for the site is 18m. The development approved in the 2017 consent exceeded the height control by: 1. 250mm to the top of the roof line and planter box, being 18.25m and 19.25m, respectively; and 2. 1.35m to the top of the lift overrun, being 19.35m. 1. The 2017 consent was supported by a cl 4.6 written variation request for building height. 2. The application proposes to increase the height of the building by: 1. 750mm to the top of the roof line and planter box, being 19m and 20m, respectively; and 2. 930mm to the top of the lift overrun, being 20.28m. 1. As the application before the Court is a s4.55(8) modification application, a further cl 4.6 variation request is not required. Notwithstanding this, the applicant has undertaken an assessment of the relevant planning provisions with respect to the increase in height and the Council accepts that the height breach is acceptable based on the assessment contained in Section 4 of the Addendum Statement of Environmental Effects being Annexure A of the joint expert report by Michael Haynes, Rohan Dickson and Kate Bartlett, filed 5 July 2023. Justification of height increase 1. Finally, the Council submits that the evidence in these proceedings demonstrates the original 2017 consent provided for a development that just cannot be built. Relying on the evidence of the parties' structural engineers the Council asks me to note that: 1. the original 2017 consent relied on a fundamentally flawed structural design which cannot be built without increases in the height proposed by the modification (and without requiring significant changes to the approved design and a new DA). 2. That is despite the fact the 2017 consent included a structural design, from a structural engineer, that provided for floor-to-floor heights on the residential levels of less than 3.1m (ranging from 2.9m to 2.95m), and providing for minimum 150mm floor slabs. 3. The matter is further complicated by the fact that Condition 5 of the 2017 consent also required the approved development to be carried out in accordance with the requirements of the Building Code of Australia. Further, drawing DA-900 (Rev B) 'Typical Floor to Floor Detail Section', as approved under the Consent, indicated that the approved development was compliant with the minimum ceiling height requirements specified in Part 4C of the ADG. 1. Put simply, the Council submits that: 1. The structural design which formed part of the original consent was seriously deficient as: 1. 150mm floor slabs were structurally inadequate; and 2. the columns and walls as originally designed were also structurally inadequate. 1. Complying with the approved 2.9m to 2.95m floor heights is not possible if all services are to be included within the slabs or ceiling spaces. 2. A wholesale redesign of the development the subject of the consent would be required (necessitating a whole new development application) if vertical risers, or other alternative elements, were to be provided by way of an alternative design. 1. For those reasons, the height increase in this case is justified as this case is unique. Conclusion 1. As I am satisfied that the parties' decision is within power, and in accordance with s 34(3) of the LEC Act I make the following orders: 1. The application is approved. 2. Development consent no. DA256/2016 is modified in the terms at Annexure A. 3. Development consent no. DA256/2016 as modified by the Court is at Annexure B. 4. The exhibits are retained. ………………. S Dixon Senior Commissioner of the Court Annexure A (387935, pdf) Annexure B (372930, pdf) ********** Amendments 09 August 2023 - Correction to typographical error in [18]. 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: 09 August 2023