Land and Environment Court New South Wales Medium Neutral Citation: Rye 184 Pty Ltd v Inner West Council [2024] NSWLEC 1097 Hearing dates: Conciliation conference held on 2 February 2024 Date of orders: 05 March 2024 Decision date: 05 March 2024 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent DA2017/00253 is modified by consent in the terms set out in Annexure A. (3) Development Consent DA2017/00253 is subject to the consolidated conditions as modified by the Court and described in Annexure B. Catchwords: MODIFICATION APPLICATION – alterations and additions to an approved building – boarding house - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 98, 113 Inner West Local Environmental Plan 2022 Texts Cited: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Rye 184 Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor)(Applicant) M Pearce (Solicitor)(Respondent) Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/243807 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal relating to a Modification Application (MA) seeking to amend Development Consent DA2017/00253 (the Consent), by alterations and additions to an approved building for serviced apartments, retail space and boarding rooms on Lot 1 Deposited Plan 63868, also known as 3-7 Crystal Street, Petersham (the site). 2. The Consent was lodged with Inner West Council (hereafter the Council), although determined by the Land and Environment Court (the Court) on 6 July 2018. The MA was lodged with the Court on 1 August 2023. 3. The Applicant submits the MA to modify the Consent granted by the Court, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), starting with an onsite view. 5. Prior to the conciliation conference, the Council agreed for the Applicant to amend the MA, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The amended MA reflects the agreed amendments, including the deletion of serviced apartments, and a resultant increase in the number of boarding rooms, within the same building footprint. The MA also alters minor elements of the internal design of the building to provide a more functional design. 6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court. Pursuant to s 34(3)(a) of the Court Act, I must 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. The parties' decision involves the Court exercising its power under s 4.55(8) of the EPA Act, to modify the Consent, as described in Annexure A, with consolidated conditions that related to the Consent described in Annexure B. 7. The requirements of s 4.55(2) of the EPA Act are considered in granting consent to the modification of the Consent. The modifications sought are considered to be substantially the same as originally approved under the Consent, specifically with regards to the built form, resulting in no further environmental impact. The modifications as agreed provide for a building that has improved functionality. The requirements of s 4.55(2)(a) are satisfied. 8. The Council confirms that concurrence of relevant authorities is not required, pursuant to s 4.46 of the EPA Act, and that the requirements of s 4.55(2)(b) are not relevant for consideration. 9. The parties agree that the amendments described in the amended MA address all relevant jurisdictional requirements, and that they are consistent with the provisions of the Inner West Local Environmental Plan 2022 (IWLEP). In satisfaction of the requirements of s 4.15(3) of the EPA Act, the built form remains substantially unchanged as assessed in the Consent. It is noted that a recent amendment to the IWLEP, removed the permissibility of serviced apartments in the E1 – Local Centre zone, relevant to the site. This has been addressed by amendments to the MA that remove serviced apartments from the approved building. The requirements of s 4.55(3) are addressed. 10. The Council confirms that the notification of the MA was made, pursuant to the requirements of the Marrickville Development Control Plan 2011, with three submissions (from two individual residents) received. The submissions from residents have been considered in the Council's merit assessment of the MA and the agreed conditions, particularly with regards to addressing an adjoining resident's privacy. Subsections 4.55(2)(c) and (d) of the EPA Act are satisfied. 11. I am satisfied, based on the evidence before the Court, that pursuant to s 4.55 of the EPA Act, there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. I have considered the jurisdictional assessment provided by the parties and evidence of the experts. 12. All actions relied on by the MA are specific to the site and the Applicant is the owner of the site, pursuant to s 98(1) of the EPA Reg. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 14. The Court notes that: 1. The Inner West Council, as the relevant consent authority, has agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA2017/00253, as follows: Plan, Revision and Issue No. Plan Name Date Issued Prepared by A001 Site Analysis 7 February 2024 McNally Architects A008 Site Plan 7 February 2024 McNally Architects A101 Basement 7 February 2024 McNally Architects A102 Ground Floor 7 February 2024 McNally Architects A103 First Floor 7 February 2024 McNally Architects A104 Second Floor 7 February 2024 McNally Architects A105 Third Floor 7 February 2024 McNally Architects A106 Fourth Floor 7 February 2024 McNally Architects A107 Roof Plan 7 February 2024 McNally Architects A200 Sections 7 February 2024 McNally Architects A300 South & North Elevations 7 February 2024 McNally Architects A301 West & East Elevations 7 February 2024 McNally Architects Plan of Management for New Age Boarding House 5 February 2024 Parker Logan Property 1. The Applicant has filed the amendments to the DA on 27 February 2024. 2. There is agreement between the parties that the Applicant is to pay the Respondent in the fixed sum of $2,000.00 within 28 days of the date of these orders. 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA2017/00253 is modified by consent in the terms set out in Annexure A. 3. Development Consent DA2017/00253 is subject to the consolidated conditions as modified by the Court and described in Annexure B. S Bish Commissioner of the Court ********** Annexure A Annexure B Amendments 06 March 2024 - Correction to Typographical errors in cover sheet 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: 06 March 2024