Land and Environment Court New South Wales Medium Neutral Citation: Vigor Master Pty Ltd v Northern Beaches Council [2023] NSWLEC 1727 Hearing dates: Conciliation Conference on 9 October 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification Application MOD2022/0373, as amended, to modify development DA2013/0324 for demolition works and construction of a Boarding House at 257 Harbord Road DEE WHY NSW, being Lot 1770 DP 752038, is approved, subject to the modified conditions set out in Annexure A. (3) As a consequence of the modification, Modification Application MOD2022/0373 is subject to the consolidated conditions of consent set out in Annexure B. Catchwords: DEVELOPMENT APPEAL – MODIFICATION – boarding house – conditions – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.14, 8.15, 107 Environmental Planning and Assessment Regulation 2021, ss 98, 113 Land and Environment Court Act 1979, ss 17, 34 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021 Warringah Development Control Plan 2011 Warringah Local Environmental Plan 2011 Category: Principal judgment Parties: Vigor Master Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Y Wang (Solicitor) (Applicant) J Simpson (Solicitor) (Respondent) Solicitors: Yan Wang (Applicant) Northern Beaches Council (Respondent) File Number(s): 2023/156078 Publication restriction: No Judgment 1. COMMISSIONER: This is an Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), from the refusal by the Northern Beaches Council (the Council) to modify development consent No DA2013/0324 granted by the Council on 2 October 2013 (Consent) for demolition works and construction of a boarding house (Development) at 257 Harbord Road, Dee Why, NSW 2099, being Lot 1770 in DP 752038, (the Site). 2. The Modification Application No MOD2022/0373, as now amended pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), proposes to modify the Consent to carry out: 1. Conversion of the common room adjacent to room 1 to a private room (room 33) and installation of an ensuite and a kitchenette in this room. 2. Construction of extension to the common room adjacent to room 2 by enclosing the outdoor area below the balcony of room 32. 3. Modification to the common kitchen and basement layout. 4. Modification to the consent conditions 1B, 48A, 50, 53, 54, 55 and 57. (the Application) 1. The Application to the Council was made pursuant to s 4.55(1A) of the EPA Act. The Court has the power to determine the modification application pursuant to s 4.55(2), s 8.14(1) of the EPA Act and s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 2. The Court arranged a conciliation conference under s 34(1)(a) of the LEC Act between the parties, which was held on-site and at the Council's Chambers on 9 October 2023. I presided over the conciliation conference. Background 1. On 2 October 2013, Northern Beaches Council granted the Consent subject to conditions. 2. The original development application (DA2013/0324) was approved for the demolition of the existing structures and construction of a boarding house containing thirty (30) boarding rooms and one (1) on site manager room. 3. The Consent has been modified on one (1) occasion since the Consent was granted by the Council and the modification was approved for the construction of additional two (2) boarding rooms and a balcony. 4. On 1 July 2022, the Applicant lodged the Modification Application on the NSW Planning Portal (PAN-240173). 5. On 15 August 2022, the Modification Application was accepted by the Council. 6. On 7 February 2023, the Modification Application was refused by the Council. 7. On 16 May 2023, the Applicant lodged the Appeal with the Court under s 8.9 of the EPA Act against the actual refusal of the Modification Application. 8. The Modification Application sought to convert the two (2) common areas (adjacent to room 1 and room 8) to two (2) boarding rooms and install an ensuite and a kitchenette in each of the two (2) rooms. 9. At the s 34 conciliation conference on 9 October 2023 the parties reached an agreement which involved the Applicant amending the architectural plans to reduce the proposed number of additional boarding rooms from two (2) to one (1), and included the extension of the existing common area adjacent to room 7. 10. On 13 October 2023, the Applicant provided the Respondent with amended plans. 11. The Respondent notified the amended plans between 13 October 2023 and 27 October 2023 in accordance with s 107 of the EPA Act. 12. After the notification period the parties finalised the s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. The Council approved the amendment to the Applicant's plans pursuant to s 113(1) of the EPA Regulation. The Council considered that the amendment was not minor such that costs were thrown away by the amendment and the Applicant agreed to an order that it pay the sum of $1,500 to the Council pursuant to s 8.15(3) of the EPA Act. The agreed position is for the Court to uphold the Class 1 appeal and amend the approved Consent as set out in paragraph [2] above. Jurisdictional matters: 1. There are jurisdictional pre-requisites which require my satisfaction before the power to modify the Consent can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided on 3 November 2023. Taking into account the parties advice in the Statement, I am satisfied in regard to the jurisdictional matters listed below. 2. The Class 1 Application was made by the Applicant, Vigor Master Pty Ltd, with the consent of the owner of the Site to which the application relates, 257 Investments Pty Ltd, in accordance with s 98(1)(b) of the EPA Regulation. A copy of the landowner's consent accompanied the Modification Application. Section 4.55(1A) – Environmental Planning and Assessment Act 1979 1. The Modification Application and the Amended Modification Application were made pursuant to s 4.55(1A) of the EPA Act, being changes to the development of 'minimal environmental impact'. When compared to the Consent, the Application before the Court now only proposes internal changes and extension works to enclose the space below the existing balcony. Consequential amendments are then made to the approved conditions, as previously modified. In this regard, the parties agree that: * The proposed modification is of minimal environmental impact - (s 4.55(1A)(a)); * The development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted - (s 4.55(1A)(b)); * The Modification Application and the Amended Modification Application were appropriately notified - (s 4.55(1A)(c)); * No submissions were received in response to the notification of the Modification Application and the Amended Modification Application - (s 4.55(1A)(d)). 1. Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against: * Such of the matters referred in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; * The reasons given by the consent authority for the grant of the Consent. 1. The Court is satisfied that all relevant jurisdictional matters with respect to s 4.15(1) of the EPA Act have been considered by the parties as set out in detail in the agreed Statement. The Court accepts the parties analysis and conclusions made. 2. The parties specifically have considered the following: 1. Section 4.15(1)(a)(i) of the EPA Act: 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP): this SEPP applies to the Site and requires due consideration to be given to the potential for the Site to be contaminated and that any necessary works be undertaken accordingly. The Application has minimum environmental effect with respect to works on the Site itself, meaning that further consideration of contamination is not mandated in this case. 2. Warringah Local Environmental Plan 2011 (WLEP 2011): The WLEP 2011 is the relevant local environmental planning instrument that applies to the Site. Whilst the prohibition of development for the purposes of boarding housing on the Site currently has effect under the WLEP 2011 (following the introduction of State Environmental Planning Policy (Housing) 2021), this does not prevent the modification of the Consent. The objectives of the applicable R2 Low Density Residential zone have been considered, and that there are no jurisdictional prerequisites imposed by WLEP 2011 for this particular modification. 1. Section 4.15(1)(a)(iii) EPA Act: 1. Warringah Development Control Plan 2011 (WDCP): the WDCP applies to all land in the previous Warringah Local Government Area and supports the provisions of the WELP 2011. The objectives of the relevant provisions of the WDCP are satisfied. 1. Otherwise the parties agree that the Application as amended is congruent with the reasons given by the Council in granting the Consent. Conclusion: 1. For these reasons and based on the evidence and documents before me, my observations on site and oral submissions made to me on site by the parties, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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. 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. Notations: 1. The Court notes: 1. The Northern Beaches Council, the Respondent, as the relevant consent authority has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending MOD2022/0373, being an application to modify development consent No. DA2013/0324 in accordance with the following documents: Architectural Plans - Endorsed with Council's stamp Drawing No. Dated Prepared By 257MOD 001 – Site Plan – Rev A 13/10/2023 Vigor Master 257MOD 101 – Basement Plan – Rev A 13/10/2023 Vigor Master 257MOD 102 – Ground Floor Plan – Rev A 13/10/2023 Vigor Master 257MOD 201 – Elevations – Rev A 13/10/2023 Vigor Master 257MOD 202 – Elevations – Rev A 13/10/2023 Vigor Master 1. The Applicant has agreed to pay the costs of the Respondent thrown away as a result of the Applicant's amendment of the Modification Application in the agreed sum of $1,500. Orders: 1. The Court orders that: 1. The appeal is upheld. 2. Modification Application MOD2022/0373, as amended, to modify development DA2013/0324 for demolition works and construction of a Boarding House at 257 Harbord Road DEE WHY NSW, being Lot 1770 DP 752038, is approved, subject to the modified conditions set out in Annexure A. 3. As a consequence of the modification, modification application MOD2022/0373 is subject to the consolidated conditions of consent set out in Annexure B. L Byrne 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: 01 December 2023