Land and Environment Court New South Wales Medium Neutral Citation: RA No 7 Pty Ltd (ABN 600 896 624) v Waverley Council [2023] NSWLEC 1776 Hearing dates: Conciliation Conference 23 November 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application DA-152/2021/B of a residential flat building including alteration of internal layout, front and rear extension and open space reconfiguration at land identified as 154 Ramsgate Avenue, North Bondi NSW, being Lot 1 in Section 10 in DP786, is approved subject to the terms set out in Annexure 'A'. (3) Development consent DA-152/2021, as modified by the Court is subject to the consolidated modified conditions of consent set out in Annexure 'B'. Catchwords: APPEAL – modification – residential flat building – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 38, 113 Category: Principal judgment Parties: RA No 7 Pty Ltd (ABN 600 896 624) (Applicant) Waverley Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/367804 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is a Class 1 Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) from the deemed refusal by Waverley Council (the Council) of Modification Application DA‑152/2021/B (the MA) for alterations to a residential flat building (RFB) approved under DA-152/2021 and currently under construction at 154 Ramsgate Ave, North Bondi, known as Lot 1, Section 10 in DP 786 (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 was held on site and at Court. 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 and which addressed the Council's contentions. This decision involved Council approving an application to amend the Applicant's plans and documents pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and amend the approved development consent to carry out the modification works involving alteration of internal layout, front and rear extension and open space reconfiguration to the approved RFB under construction with conditions. Background 1. Development consent DA-152/2021 (the DA) was approved by the Court upholding an appeal from the refusal by the Council on 14 February 2022. The DA authorised the demolition of existing structures and construction of a new attached three-unit RFB with basement parking containing 6 parking spaces (Consent). On 19 July 2022 the Consent was subsequently modified by the Council by DA-52/2021/A which sought to amend the provision and allocation of car parking spaces. 2. The Applicant lodged the current modification application No DA152/2021/B with Council on 5 October 2022 and a deemed refusal appeal was commenced on 6 December 2022. 3. The respondent filed a Statement of Facts and Contentions on 14 February 2023. 4. The parties participated in a s 34 conference on 7 June 2023 which was terminated. 5. Further negotiations occurred between the parties and their planning experts, Mr Karavanas for the Applicant and Mr Turrisi for the Respondent met and agreed on some further amendments that could be made to resolve the proceedings. 6. The Applicant prepared further amended plans and supporting documents (the Final Plans) which were then attached to a joint expert report filed on 16 November 2023 in preparation for the s 34 conference at which the parties reached an agreement. 7. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 8. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant the modification application No DA-152/2021/B to the approved development under construction. Jurisdictional matters: 1. There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement (the Statement) provided with the s 34 Agreement on 23 November 2023. 2. Regarding jurisdiction, and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters that apply. Section 4.55 – Environmental Planning and Assessment Act 1979 1. The Modification Application and the Amended Modification Application were made pursuant to s 4.55(2) of the EPA Act. In this regard, the parties agreed that: a) Section 4.55(2)(a) 1. 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 this had not been disputed by the Council; b) Section 4.55(2)(c)(ii) and (d) 1. The MA was notified in accordance with the Council's community development participation and consultation plan during November 2022. 2. 3 submissions were received, and those issues are listed at paragraph 21 of the Amended Statement of Facts and Contention (ASOFC). The primary objections were bulk and scale and view loss. The Applicant has considered these and responded to them by undertaking a professional view loss assessment and also undertaking professional photo renders to demonstrate impacts. 3. The owner of 146 Brighton Boulevarde addressed the Court during the s 34 conference and allowed for access to various residential units at that address to consider issues of view loss. 4. The Court could be satisfied that consideration has been given to the submissions insofar as they are raised in the contentions. The amended plans address the concerns by chamfering the rear upper level to ensure no additional solar impact and to include additional privacy screens and landscaping. c) Section 4.55(3) 1. In coming to the agreement, the parties have considered the matters in s 4.15(1) of the Act which are merit considerations and do not engage any other jurisdictional requirements. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The approved development is 'BASIX affected development' and a BASIX Certificate was required to be lodged with the development application pursuant to the Environmental Planning and Assessment Regulation in force at the relevant time. 2. The Applicant provided BASIX Certificate No 1177871M_04 dated 1 September 2022 when the DA was lodged. 3. A condition is included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX Certificate No 1177871M_04. 4. Notwithstanding this, an amended BASIX has been prepared in respect of the Final Plans being No 1177871M_06 dated 27 November 2023. State and Local Environmental Planning Instruments 1. It can be inferred that statutory planning controls applicable to the Site and the proposed development were considered by the Court in the previous assessment undertaken for the grant of consent subject to conditions. An extensive consideration of the planning controls is found in the Applicant's Statement of Environmental Effects. 2. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant Environmental Planning Instruments and planning controls. 3. I refer to the analysis undertaken in the parties Statement at paragraphs 25 to 48 and accept the agreed position of the parties. Conclusion 1. For these reasons, based on the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions. 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. 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 that: 1. The Respondent, Waverley Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA-152/2021/B to rely on the documents listed below: Amended Architectural Plans Plan description Plan No and rev Prepared by Dated Site Context DA.101 [H] Ken Powell Architect 09.11.23 Setback Diagram DA.102 [H] Ken Powell Architect 09.11.23 Basement Plan DA.110 [H] Ken Powell Architect 09.11.23 Ground Floor Plan DA.111 [H] Ken Powell Architect 09.11.23 Level 1 Plan DA.112 [H] Ken Powell Architect 09.11.23 Level 2 Plan DA.113 [H] Ken Powell Architect 09.11.23 Roof Plan DA.114 [H] Ken Powell Architect 09.11.23 Sections DA.115 [H] Ken Powell Architect 09.11.23 Elevations DA.116 [H] Ken Powell Architect 09.11.23 Compliance Diagrams DA.117 [H] Ken Powell Architect 09.11.23 Supporting Documentation Landscape Plans C001-C004 Revision A Bates Landscape 10.10.23 BASIX Certificate No. 1177871M_06 Certificate No.: 1177871M_06 BONNEFIN CONSULTING PTY LTD 27 November 2023 1. The Applicant is to file the plans and documents referred to at [30(1)] above within 7 days of the date of this judgment. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Modification application DA-152/2021/B of a residential flat building including alteration of internal layout, front and rear extension and open space reconfiguration at land identified as 154 Ramsgate Avenue, North Bondi NSW, being Lot 1 in Section 10 in DP786, is approved subject to the terms set out in Annexure 'A'. 3. Development consent DA-152/2021, as modified by the Court is subject to the consolidated modified 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: 19 December 2023