Land and Environment Court New South Wales Medium Neutral Citation: Princeton Capstack Pty Ltd v Inner West Council [2023] NSWLEC 1532 Hearing dates: Conciliation conference on 7 September 2023 Date of orders: 14 September 2023 Decision date: 14 September 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent DA/2021/0521 for the adaptive re-use of the existing buildings and alterations and additions to provide six multi dwelling units and associated works, including car parking, site remediation and street tree removal and replacement to be modified by changes to excavation, footprint, internal level, external openings, provision of parking, changes to finishes and materiality and amendment to the location of landscaping at 73-75 Beattie Street, Balmain NSW is modified in the terms in Annexure "A". (3) Development consent DA/2021/0521 as modified by the Court is at Annexure "B". Catchwords: MODIFICATION APPLICATION – conciliation conference – adaptive re-use of warehouse building – construction of residential flat buildings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9 Inner West Local Environment Plan 2022, cl 5.10 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environment and Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Princeton Capstack Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/215718 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) and arise as a result of the deemed refusal, by Inner West Council, of modification application MOD/2023/0008. This modification application, made pursuant to s 4.56 of the EPA Act, seeks consent to modify the Court-approved Development Consent D/2021/0521 for a townhouse development, including changes to excavation, footprint, levels, openings, parking, finishes and planting at 73-75 Beattie Street, Balmain, Lots 20 and 21A in DP 11435 and Lots 26, 27, 28 and 29 in DP 2821. 2. Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 September 2023. I presided over the conciliation conference. 3. 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 modifying the consent in accordance with the modification application. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court. 5. 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. From this I note the following points. 6. Clause 5.10 of the Inner West Local Environment Plan 2022 provides for matters of heritage significance. The parties submit, and I accept that, based on the information contained in the Heritage Impact Statement prepared by Graham Hall, dated May 2023, the construction methodology prepared by SDA Structures, dated 31 August 2023 and the relevant conditions of consent, that the impact of the proposed development on the heritage significance of the item is acceptable. 7. Although this application includes modification to the building footprint and excavation, the parties submit, and I accept that the consideration of the matters required pursuant to s 4.6 of the State Environment and Planning Policy (Resilience and Hazards) 2021 remain adequately addressed by the documentation in the original development consent. 8. A BASIX certificate has been filed with this application that relates to the development, as modified, in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 9. Pursuant to s 4.56(1) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. The development, as modified, results in a development with the same number of townhouses and bedrooms, no change to the maximum height, no significant impacts on the heritage significance of the Heritage Conservation Area, no reduction to the amenity of the proposed dwellings, and no significant additional overshadowing or privacy impacts. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted. 10. In accordance with EPA Act s 4.56(1)(b), (c) and (d), the modification application was notified in accordance with the Council's Community Participation Plan, from which one submission was received. The parties submit, and I accept, that the matters raised in this submission have been considered in the assessment of this application. 11. Pursuant to EPA Act s 4.56(1A), I must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development subject of the application, and also the reasons given by the consent authority for the grant of the consent that is sought to be modified. From the parties' submission and the information contained in the Class 1 application, I am satisfied that all relevant matters referred to in s 4.15(1) have been adequately taken into consideration, as have the reasons given by the consent authority for the original grant of consent. 12. For these reasons, 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. 13. 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 this decision. 14. The Court orders: 1. The appeal is upheld. 2. Development Consent DA/2021/0521 for the adaptive re-use of the existing buildings and alterations and additions to provide six multi dwelling units and associated works, including car parking, site remediation and street tree removal and replacement to be modified by changes to excavation, footprint, internal level, external openings, provision of parking, changes to finishes and materiality and amendment to the location of landscaping at 73-75 Beattie Street, Balmain NSW is modified in the terms in Annexure "A". 3. Development consent DA/2021/0521 as modified by the Court is at Annexure "B". E Washington Acting Commissioner of the Court Annexure A Annexure B ********** 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: 14 September 2023