Land and Environment Court New South Wales Medium Neutral Citation: Kingsway Development NSW Pty Ltd v Bayside Council [2023] NSWLEC 1516 Hearing dates: Conciliation conference on 20 July, 25 and 29 August 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent DA-2016/150 granted by Bayside Council on 27 March 2018 is modified in the terms in Annexure A to this agreement. (3) Development consent DA-2016/150 as modified by the Court is Annexure B to this agreement. Catchwords: MODIFICATION APPLICATION – modification application to residential flat building – conciliation conference – agreement between parties - orders Legislation Cited: Architects Act 2003 Bayside Local Environmental Plan 2021, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.10 Environmental Planning and Assessment Act 1979, cll 4.15 4.55, 8.9, 8.14, 8.15 Environmental Planning and Assessment Regulation 2000, cl 115 Environmental Planning and Assessment Regulation 2021, ss 29, 38, 102 Land Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2000, Pt 3, cll 29, 30 Water Management Act 2000 Texts Cited: Rockdale Development Control Plan 2011 Apartment Design Guide Category: Principal judgment Parties: Kingsway Development NSW Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: P Murray (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Addisons (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/163146 Publication restriction: Nil 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 deemed refusal of Modification application No. MDA-2022/204 by Bayside Council (the Respondent). 2. The Modification application seeks to modify consent DA-2016/150 (the original consent) by the addition of two basement levels, changes to the building footprint and layout changes to all floor levels, façade changes and inclusion of winter gardens at the site legally described as Lot 100 in DP 1097898, otherwise known as 401 Princes Highway and 2 Fox Lane, Rockdale. 3. The original consent was for a seven-storey mixed use development, comprising 39 Residential apartments, 2 commercial tenancies and 4 levels of basement car parking. 4. The original consent has been modified on two occasions. 5. The modification application was lodged with the Respondent on 5 December 2022, and was publicly notified for a period of five weeks, from 14 December 2022 – 18 January 2023. No public submissions were received. 6. As the modification application was not otherwise determined, the Applicant filed an appeal in Class 1 of the Court's jurisdiction on 22 May 2023. 7. 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 20 July 2023, at which I presided. 8. At the conciliation conference, the parties advised that, subject to certain amendments to the modification application, it was possible to achieve an in-principle agreement as to the terms of a decision in the proceedings that was acceptable to the parties. The Court granted an adjournment for the Applicant to undertake certain investigations of the site and prepare amended plans and other documents. 9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 29 August 2023, and the matter was re-allocated to me under s 34 of the LEC Act. 10. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, 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. 11. 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 [34]. 12. 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. 13. Firstly, with respect to s 4.55 of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates to is substantially the same as the development for which the consent was originally granted by the Respondent. 14. I have formed this opinion on the basis of the modifications agreed by the parties to be limited, such as the addition of one level of basement parking, and one additional apartment when compared to the original consent. The proposed use, mix and external envelope are also substantially the same as the original consent. Where winter gardens and façade changes are proposed, these are also within the external envelope of the original consent. Accordingly, when considered in both qualitatively and quantitative terms, the development to which the consent is proposed to be modified is substantially the same development as the development for which consent was originally granted, and before the modifications cited at [], in accordance with s 4.55(2) of the EPA Act. 15. I have also taken into consideration those matters under s 4.15(1) of the EPA Act as they are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent in the original consent. Environmental Planning and Assessment Regulation 2021 1. In respect of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), I note the modification application is accompanied by the written consent of the owner of the land. 2. Section 102 of the EPA Regulation prescribes the form of statement to be provided by a qualified designer where such a statement was a requirement of the original development application, as was the case here. The statement required by s 102(2) is in virtually identical terms to that required by s 29 of the EPA Regulation, but, where the qualified designer is not the author of the original development, verification that the modification does not diminish or detract from the design quality of the original development, nor compromise the design intent of the original development, must be sought from the relevant design review panel, and not the author of the statement (s 102(4)). 3. While the Respondent has a Design Review Panel (DRP), constituted in accordance with Pt 3 of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002 (SEPP 65), the parties rely on minutes of the DRP meeting dated 6 April 2023, amendments made subsequently, and s 39 of the LEC Act that provides the Court with the power necessary to determine the appeal whether or not consultation of the sort envisaged by s 102 has taken place. 4. Clause 29 of SEPP 65 is invoked by s 102 of the EPA Regulation, or cl 115 as it was in the Environmental Planning and Assessment Regulation 2000, as it relates to the modification of development consents. 5. I am assisted by the design verification statement prepared by Mr James Alexander-Hatziplis, of Place Studio, in respect of those matters to be taken into consideration at cl 29(2) of SEPP 65, and I am satisfied Mr Alexander-Hatziplis is a qualified designer as defined in the Dictionary of the EPA Regulation, being a person registered as an architect in accordance with the Architects Act 2003. 6. On the same basis I am also satisfied that adequate regard has been had to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria, pursuant to cl 30(2) of SEPP65. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The modification application proposes an additional level of basement carparking beyond the development the subject of the original consent. A Detailed Site Investigation and Remediation Action Plan, prepared by EI Australia dated 17 August 2023 accompany the modification application. On the basis of the recommendations and conclusions of the reports prepared by EI Australia, and the agreed conditions of consent, I have considered whether the site is contaminated and am satisfied it can be made suitable for the purpose for which the development is proposed to be carried out, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. Bayside Local Environmental Plan 2021 1. The proposed modification does not exceed the height permitted under cl 4.3 of the Bayside Local Environmental Plan 2021 (BLEP), and cl 4.4 of the BLEP imposes no floor space ratio standard on the site. 2. While the site is located within an area of Class 5 Acid Sulfate Soils on the relevant map at cl 6.1(2) of the BLEP, the Detailed Site Investigation and Remediation Action Plan, prepared by EI Australia dated 17 August 2023 concludes, with reference to a 1:25 000 Botany Bay Acid Sulfate Soils Risk Map, and proximity to soil of other classification, acid sulfate soils are unlikely to be encountered. 3. On the basis of a Stormwater management plan and associated stormwater concept plans prepared by Mance Arraj Civil and Structural Engineers, and the Geotechnical Inspection Report prepared by JC Geotechnical dated 14 November 2022, I conclude that works associated with earthworks are adequately addressed in accordance with cl 6.2 of the BLEP. 4. Relatedly, on the basis of the documents noted above, I am also satisfied that, pursuant to cl 6.3 of the BLEP, the development as proposed to be modified demonstrates water sensitive urban design principles, that stormwater and flooding measures are integrated as part of the development, and that reasonable management actions have been taken to avoid adverse impacts of stormwater water runoff and, to the extent it is achievable on the site, water permeable surfaces have been maximised, evident in the landscape planting fronting the Princes Highway. 5. The site is identified on the Design Excellence Map at cl 6.10(2)(b) of the BLEP and so development consent is precluded unless the development exhibits design excellence. The Applicant relies on a Design Excellence statement dated 2 November 2022 that, when read in conjunction with the minutes of the DRP, and understood in the context of amendments subsequently made to the modification application, the parties agree exhibits design excellence. In particular, the setback of the basement and provision of the landscaping within the area identified as a 'Green gateway' by the Rockdale Development Control Plan 2011 appears to address comments made by the DRP in respect of cl 6.10(4)(e)(iii) and (ix) in respect of streetscape interface, pedestrian and cycle requirements, and of subcl (xii) in respect of landscape integration. As such, I accept the joint position of the parties that the development, as proposed to be modified, exhibits design excellence. Water Management Act 2000 1. The original consent was for integrated development, pursuant to s 4.46 of the EPA Act. The Applicant has provided a Dewatering Management Plan prepared by JC Geotechnics dated 17 May 2023, and has subsequently confirmed that the basement car parking structure will be in the form of a tanked basement. Notations to this effect are contained on the Stormwater Concept Plans that form part of the agreed conditions of consent. 2. Having considered the additional information provided by the Applicant, and the agreement of the parties that it is appropriate to do so, the Court exercises the power, pursuant to s 8.14(3) of the EPA Act to determine the appeal in respect of the Water Management Act 2000, whether or not concurrence has been obtained. In exercising such a power, I note the agreed conditions of consent contain, at Condition 144, terms provided by WaterNSW. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. Finally, the application is accompanied by a BASIX certificate (Cert No. 1417583M, dated 28 August 2023) prepared by East Coast Approvals Group Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation. 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. Bayside Council as the relevant consent authority has, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 , consented to the following amendments to modification application No. MDA-2022/204: 1. Design Verification Statement prepared by Place Studio dated 21 August 2023 2. Schedule of Amendments prepared by Place Studio dated 21 August 2023 Architectural Plans prepared by Place Studio Drawing Rev. Date Description S34-000 P4 21.08.2023 Cover Sheet S34-100 P4 21.08.2023 Basement 05 Plan S34-101 P4 21.08.2023 Basement 04 Plan S34-102 P4 21.08.2023 Basement 03 Plan S34-103 P4 21.08.2023 Basement 02 Plan S34-104 P4 21.08.2023 Basement 01 Plan S34-200 P4 21.08.2023 Ground Floor Plan S34-201 P4 21.08.2023 Level 01 Plan S34-202 P4 21.08.2023 Level 02 Plan S34-203 P4 21.08.2023 Level 03 Plan S34-204 P4 21.08.2023 Level 04 Plan S34-205 P4 21.08.2023 Level 05 Plan S34-206 P4 21.08.2023 Level 06 Plan S34-207 P4 21.08.2023 Level 07 Plan (Roof) S34-208 P4 21.08.2023 Level 08 Plan (Lift Overun) S34-301 P3 21.08.2023 Section AA S34-302 P3 21.08.2023 Section BB & CC S34-303 P3 21.08.2023 Section DD S34-305 P3 21.08.2023 Entry Ramp Section S34-401 P4 21.08.2023 Elevation North S34-402 P4 21.08.2023 Elevation South 3. S34-403 P4 21.08.2023 Elevation East S34-404 P4 21.08.2023 Elevation West S34-601 P3 21.08.2023 Cross Ventilation S34-602 P3 21.08.2023 Solar Compliance 9:00am – 3:00pm S34-603 P1 21.08.2023 Solar Compliance 9:00am – 3:30pm S34-604 P3 21.08.2023 Views from Sun - 21 June @ 9:00am S34-605 P3 21.08.2023 Views from Sun - 21 June @ 9:30am S34-606 P3 21.08.2023 Views from Sun - 21 June @ 10:00am S34-607 P3 21.08.2023 Views from Sun - 21 June @ 10:30am S34-608 P3 21.08.2023 Views from Sun - 21 June @ 11:00am S34-609 P3 21.08.2023 Views from Sun - 21 June @ 11:30am S34-610 P3 21.08.2023 Views from Sun - 21 June @ 12:00pm S34-611 P3 21.08.2023 Views from Sun - 21 June @ 12:30pm S34-612 P3 21.08.2023 Views from Sun - 21 June @ 1:00pm S34-613 P1 21.08.2023 Views from Sun - 21 June @ 1:15pm S34-614 P3 21.08.2023 Views from Sun - 21 June @ 1:30pm S34-615 P3 21.08.2023 Views from Sun - 21 June @ 2:00pm S34-616 P3 21.08.2023 Views from Sun - 21 June @ 2:30pm S34-617 P3 21.08.2023 Views from Sun - 21 June @ 3:00pm S34-618 P1 21.08.2023 Views from Sun - 21 June @ 3:30pm S34-630 P3 21.08.2023 GFA Calculations Plans S34-635 P3 21.08.2023 Communal Open Space S34-640 P3 21.08.2023 LEP Height Plan Diagram Amended Landscaping Plans prepared by Vision Dynamics Drawing Rev. Date Description DA 1-4 C 27.07.2023 Legend / Details/ Plant Schedule 4. DA 2-4 C 27.07.2023 Ground Level DA 3-4 C 27.07.2023 Level 4 DA 4-4 C 27.07.2023 Level 7 Amended Stormwater Plans prepared by Mance Arraj Engineers Drawing Rev. Date Description SW010 C 28.07.2023 Basement Level 5, Pump Out Tank Details and Notes SW015 C 28.07.2023 Basement Level 1 5. SW020 C 28.07.2023 Ground Level SW021 C 28.07.2023 OSD/WSUD Tank Details SW022 C 28.07.2023 OSD/WSUD Tank Details Continued SW023 C 28.07.2023 MUSIC & DRAINS Catchment Plan and Results SW020 C 28.07.2023 Upper Roof Level and Rainwater Tank Details 6. Stormwater Management Plan prepared by Mance Arraj Engineers dated July 2023 7. Traffic and Parking Assessment prepared by TTPA dated July 2023 8. Detailed Site Investigation prepared by EI Australia dated 17 August 2023 9. Remediation Action Plan prepared by EI Australia dated 17 August 2023 10. BASIX Certificate No. 1417583M dated 28 August 2023 1. The Applicant filed the amendments to development application No. MDA-2022/204 cited at [33(1)] with the Court on 29 August 2023. 2. The parties agree that the Applicant is to pay the costs of the Respondent thrown away in the fixed sum of $10,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of the date of the orders. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent DA-2016/150 granted by Bayside Council on 27 March 2018 is modified in the terms in Annexure A to this agreement. 3. Development consent DA-2016/150 as modified by the Court is Annexure B to this agreement. T Horton Commissioner of the Court ********** Annexure A (316481, pdf) Annexure B (455285, 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: 12 September 2023