Land and Environment Court New South Wales Medium Neutral Citation: 58 Bream Street Pty Ltd v Randwick City Council [2024] NSWLEC 1155 Hearing dates: Conciliation conferences held on 30 January, 14 and 28 February, 8 and 13 March 2024 Date of orders: 04 April 2024 Decision date: 04 April 2024 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: 1) The appeal is upheld. 2) Development Consent No.150/2022 is modified in the terms in Annexure A. 3) Development Consent No.150/2022 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Land and Environment Court Act 1979, ss 8.9, 34 Randwick Local Environmental Plan 2012, cll 2.2, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.7, 6.10 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002 EPI 530), cl 3 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2 and 4, s 4.6 Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Attena Group Pty Ltd v Randwick City Council [2022] NSWLEC 1586 Texts Cited: Randwick Community Participation Plan 2019 Randwick Comprehensive Development Plan 2013 Category: Principal judgment Parties: 58 Bream Street Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Randwick City Council (Respondent) File Number(s): 2023/340054 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns an application to modify a development consent for the demolition of existing structures and construction of a four storey residential flat building comprising three units, basement car parking, and associated landscape works at Lot 2 on DP220244, also known as 58 Bream Street, Coogee (the site). The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the deemed refusal of Modification Application No. 150/2022/A (MOD A) by Randwick City Council (the Respondent). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [21] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. On 25 October 2022, the Land and Environment Court granted consent to Development Application DA/150/2022 within proceedings Attena Group Pty Ltd v Randwick City Council [2002] NSWLEC 1586 for the demolition of existing structures and construction of a residential flat building comprising three units, basement car parking, landscaping and associated works at 58 Bream Street, Coogee (Original DA). 3. MOD A was lodged on 18 July 2022 as a section 4.56 application under the EPA Act to the court-approved development, seeking a modification to the approved residential flat building for a rear extension, floorplan reconfiguration, conversion of planter areas to balconies, and an additional bedroom to ground floor Unit 1. 4. The Court arranged a conciliation conference for the current Modification application under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 January, 14 and 28 February, 8 and 13 March 2024, commencing with an on-site view. I presided over the conciliation conference. There was one submission to the modification application. The submitter did not attend the on-site view. 5. Over the course of the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The Applicant agreed to amend the application for the modification in response to matters raised by Council, and these amended plans form part of the s 34 agreement. A final agreement under s 34(3) of the LEC Act was filed on 15 March 2024. The agreement is supported by an agreed statement on jurisdictional prerequisites, which sets out the jurisdictional matters about which the consent authority must be satisfied. The decision agreed upon is for the grant of the Modification Application subject to conditions, pursuant to s 4.55(2) of the EPA Act. 6. The MOD A amended plans compared with the previously approved Development Consent No. 150/2022 plans incorporate the following differences: 1. The Original Consent approved an FSR of 0.88:1 being 285sqm. The Final Plans seek an FSR of 0.96:1 or a GFA of 310.8sqm constituting a breach of the development standard by 20.65sqm. The increase in floorspace will allow for one additional bedroom to be provided for Ground Floor Unit 1; 2. The proposed development retains the same maximum height as that approved in the Original Consent; 3. The front façade remains the same with the changes concentrated at the rear and sides of the proposed building, including retaining articulation and planter boxes; 4. A planter box is provided in the rear communal open space area in lieu of a part of a previously approved hard paved area which incorporated a BBQ; 5. The previously approved plans included blade walls with long extensions, and the parties advise that Condition 2(a) of the Original Consent sought to reduce the length of those blade walls. The MOD A amended plans do not have similar blade walls. The parties further advise that the privacy of adjoining properties will be maintained through the imposition of Condition 2 as contained in the s 34 agreement, and the original Condition 2(a) has been deleted. 1. I have considered the contents of the agreed jurisdictional statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in Condition 1 (of Annexure A), concerning MOD A. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act. Jurisdictional preconditions Environmental Planning and Assessment Act 1. Section 4.55(2)(a) of the EPA Act Modification of consents states: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) … 1. The parties submit, and I accept that, the application to modify Development Consent No. 150/2022 is substantially the same development as the development for which consent was originally granted, for the reasons identified in the Section 4.56 Modification report prepared by gsa planning dated 6 July 2023, which was lodged in support of MOD A. 2. I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reasons that the modifications to the built form are minor, there is no change to the proposed use or generally to the external appearance of the approved building, and the development will be of the same height, and similar bulk and scale and have the same number of residential units. Public Notification 1. The Modification application was notified for 14 days commencing 27 July 2023 in accordance with the public notification process in the Randwick Community Participation Plan 2019. One submission was received raising concerns about overshadowing. The parties advise, and I am satisfied that the matters raised in the submission have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments or the imposition of conditions. Owner's consent 1. The Modification application was made with the consent of the owner of the site. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) relates to the site. The aims of Chapter 2 of the Biodiversity SEPP are to (a) to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and (b) to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation; and 1. The parties advise that the proposed development does not involve the removal of any additional trees beyond the original development consent and that the proposed development has been amended to ensure the protection of existing trees to be retained on the site. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The amended Modification application is accompanied by a BASIX certificate No. 1278646M_06 prepared by AENEC dated 4 March 2024, in compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002 1. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (2002) (Design SEPP) does not apply as there are only three dwelling units in the proposed development (cl 3(b) of the Design SEPP defines that the SEPP applies to developments of four or more units). State Environmental Planning Policy (Resilience and Hazards) 2021 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience SEPP) Chapters 2 and 4 apply to the site; and 1. The parties advise that appropriate consideration has been given to the site's coastal location and that the Court can be satisfied that the development has been designed to avoid or minimise any adverse impacts; 2. The use of the site is proposed to remain residential and the parties advise that pursuant to s 4.6 of the Resilience SEPP a report specifying the findings of a preliminary investigation of the site is not required; 3. The parties further advise that consideration of contamination of the site was undertaken pursuant to the previous State Environment Planning Policy No 55 (Remediation of Land and the Contamination Land Planning Guidelines) (1998) in the granting of the original development consent and that the site conditions remain the same. Randwick Local Environmental Plan 2012 1. The Randwick Local Environmental Plan 2012 (the LEP) is the relevant local environmental planning instrument that applies to the site; and 1. The site is zoned R3 Medium Density Residential pursuant cl 2.2 of the Randwick LEP. Accordingly, residential flat buildings are permissible in the zone; 2. Pursuant to cl 4.3 of the LEP, a maximum building height of 12m applies to the site. MOD A (as amended) retains the same maximum height as approved in Development Consent 150/2022 and complies with this development standard; 3. Pursuant to cl 4.4 of the LEP a maximum floor space ratio (FSR) of 0.9:1 applies to the site. Development Consent 150/2022 approved an FSR of 0.88:1 being 285sqm. MOD A (as amended) seeks an FSR of 0.96:1 or a GFA of 310.8sqm constituting a breach of the development standard by 20.65sqm; and 1. The parties submit that a cl 4.6 request for variation of the development standard is not required in this matter; 2. Consistent with the decision of the Court in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 (at [31]), I accept that the power in s 4.55(2) of the EPA Act is sufficiently broad to allow the grant of a modification application that breaches a development standard, and cl 4.6 of the LEP does not apply to modification applications. 1. Clause 5.10(4) of the LEP relates to Heritage significance; and 1. The parties submit that the site is not a heritage item, is not proximate to any heritage items and is not in a Heritage Conservation Area under the LEP; 1. Clause 6.1 of the LEP relates to Acid Sulfate Soils. The site is within a Class 5 area as marked on the LEP maps; and 1. The parties submit that the original consent dealt with acid sulfate soil and it was determined that there was no need for an acid sulfate soil management plan; 1. Clause 6.2 of the LEP relates to Earthworks; and 1. The parties advise that the application does not seek any additional earthworks. All relevant matters for consideration in this clause were considered as part of the original consent; 1. Clause 6.4 of the LEP deals with Stormwater; and 1. The parties submit that the amended MOD A does not result in any changes to the original stormwater considerations on the site, and on this basis the Court can be satisfied that the requirements at cl 6.4 continue to be achieved; 1. Clause 6.7 of the LEP deals with Foreshore scenic protection area provisions; and 1. The parties submit that the amended MOD A has addressed the requirements of clause 6.7(3) by reducing the amount of additional bulk of the proposed development and reducing the view of same both to and from the coast and beach; 1. Clause 6.10 of the LEP relates to essential services; and 1. The parties advise that site has been used for residential purposes for many years and that the Court can be satisfied that the relevant provisions in the LEP have been satisfied. Randwick Comprehensive Development Plan 2013 1. The Randwick Comprehensive Development Plan 2013 (the DCP) applies to the site. The parties advise that all relevant development control plans have been take into consideration in accordance with s 4.15(1)(a)(iii) of the EPA Act, contentions originally raised by the Respondent relating to amenity impacts of the proposed development have been resolved in the amended Modification application. Conclusion and orders 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now 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 make, and have not made, any assessment of the merits of the amended Modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes that: 1. Randwick City Council, as the relevant consent authority, has agreed, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification application DA/150/2022/A in accordance with the amended architectural plans and documents below, except where amended by other conditions of this consent: Plan Drawn by Dated A102 – Site Plan (Revision 4) Attena Group Design & Build 09/02/2024 A103 – Basement Plan (Revision 5 Attena Group Design & Build 23/02/2024 A104 – Ground Level (Revision 5) Attena Group Design & Build 23/02/2024 A105 – Level 1 (Revision 5) Attena Group Design & Build 23/02/2024 A106 – Level 2 (Revision 5) Attena Group Design & Build 23/02/2024 A107 – Level 3 (Revision 5) Attena Group Design & Build 23/02/2024 A108 – Roof (Revision 5) Attena Group Design & Build 23/02/2024 A108a – Roof – Overlaid survey Attena Group Design & Build 09/02/2024 (Revision 4) A109 – Section 1 (Privacy assessment) Attena Group Design & Build 09/02/2024 (Revision 4) A110 – Section 2 & 3 (Revision 4) Attena Group Design & Build 09/02/2024 A110a – Section 4 (Privacy assessment) (Revision 4) Attena Group Design & Build 09/02/2024 A110b – Section 5 Attena Group Design & Build 09/02/2024 (Revision 4) A110c – Detailed Section Attena Group Design & Build 09/02/2024 (Revision 4) A111 – North & South Elevation Attena Group Design & Build 23/02/2024 (Revision 5) A112 – East Elevation (Revision 4) Attena Group Design & Build 09/02/2024 A113 – West Elevation (Revision 4) Attena Group Design & Build 09/02/2024 A130 Window schedule (Revision 5) Attena Group Design & Build 23/02/2024 A131 Schedule of colours and finishes Attena Group Design & Build 09/02/2024 (Revision 4) BASIX Certificate No. Prepared By Dated 1278646M_06 Australian Energy Efficiency Consulting 04/03/2024 1. The amended Modification application was filed with the Court on 18 March 2024 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No. 150/2022 is modified in the terms in Annexure A. 3. Development Consent No. 150/2022 as modified by the Court is Annexure B. G Kullen 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: 04 April 2024