Land and Environment Court New South Wales Medium Neutral Citation: Vista Sol Pty Ltd v Inner West Council [2024] NSWLEC 1451 Hearing dates: Conciliation conference 1 July 2024 Date of orders: 31 July 2024 Decision date: 31 July 2024 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development Consent No. D/2018/00570 for the adaptive re-use of an existing building as a boarding house, at 319 Trafalgar Street, Petersham, is modified by Modification Application No. MOD/2024/0058 (Annexure A), subject to the consolidated conditions of consent at Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30A State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2 Inner West Local Environmental Plan 2022, cl 2.7 Cases Cited: Vista Sol Pty Ltd v Inner West Council [2020] NSWLEC 1262 Category: Principal judgment Parties: Vista Sol Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Macpherson Kelley Solicitors (Applicant) Inner West Council (Respondent) File Number(s): 2023/448341 Publication restriction: Nil Judgment 1. COMMISSIONER: This is a modification application (MOD/2024/0058) pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. D/2018/00570 granted on 19 June 2020 (Vista Sol Pty Ltd v Inner West Council [2020] NSWLEC 1262). The site, at 319 Trafalgar Street, Petersham (Lot 1 in Deposited Plan 397194), contains an existing building. Development Consent No. D/2018/00570 is for the partial demolition of the existing building and adaptive reuse as a four-storey boarding house with basement carpark. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 July 2024. I presided over the conciliation conference. 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. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. 3. There are jurisdictional pre-conditions to the exercise of power to modify the development consent. Amended application 1. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the amended application are listed under condition 4 of the consolidated conditions of consent at Annexure B. The proposal 1. The proposal is for the following changes to the approved development: * Amended design of the basement car park including the reconfiguration of car spaces, amended design of fire egress, amended design of lift core, amended ramp design, relocation of motorcycle parking, bicycle parking and waste storage areas. * Proposed demolition and reconstruction of external wall and façade to Trafalgar Street. * Amended vehicular access and garage door design. * Revised fire stair and exit including corridor layout to provide for separated access from basement carpark and main building. * Amended Ground Floor design comprising the reconfiguration of the internal layout, provision of waste storage areas, relocation of bicycle and motorcycle parking. * Amended First Floor design comprising the reconfiguration of the internal layout and design of rooms and common areas. * Amended Second Floor design comprising the reconfiguration of the internal layout and design of rooms and common areas. * Amended Third Floor design comprising the reconfiguration of the internal layout and design of rooms, common areas and increased setback to Trafalgar Street. * Adjustment to configuration to accessible units. * Amended lift overrun, provision of skylights and amendments to roof pitch. * Amendments to the size, location and design of openings and windows to Trafalgar Street. * Amendments to the size, location and design of openings and windows to the rear boundary. * Amended Stormwater and Landscape design. * Provision of services on the Trafalgar Street frontage. Jurisdictional matters 1. Section 4.55(2) of the EPA Act is in the following terms: (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), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. 1. I accept and adopt the submission of the parties, that the modified consent is substantially the same development as the development for which consent was originally granted, for the following reasons: 1. The proposal does not alter the approved total number of rooms, being 25, which include the same approved number of rooms, being 24 boarding rooms (of which 3 are accessible units) and a caretaker room. The provision of three (3) accessible boarding rooms remains compliant with Condition 8 of the development consent. 2. The proposal increases the approved number of residents by 1 person, being a total of 48 residents plus 1 caretaker, and the number of accessible units from 2 to 3. 3. The proposal does not alter the originally approved off-street car parking provision of 6 spaces (including one manager space and one accessible space) and 5 motorcycle spaces. The number of bicycle spaces will be increased from 5 to 10. 4. The proposal does not alter the approved building height, measured to the roof ridge and lift overrun ridge, of RL44.38. 5. The proposal alters the floor space ratio (FSR) from the approved FSR of 2.13:1 to 2.11:1. 6. The proposal will not radically alter or transform the external form or appearance of the approved development, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views and visual bulk. 7. The proposal relates to minor adjustments to the internal layout and façade of the building with its visual setback generally maintained, but for a minor adjustment to the reconstructed brick wall along Trafalgar Street and associated public domain works to align the street facing walls parallel to the boundary. 8. The proposal maintains the overall presentation of the building as well as its visual bulk and scale. 9. The proposed adjustment to the bulk at the southern elevation of the building has been carefully designed to reduce the visual scale of the approved development and improve solar access to the adjoining buildings to the south. The proposal will have no material impact on the privacy or views enjoyed by the surrounding properties. 1. The site is zoned R4 High Density Residential under the Inner West Local Environmental Plan 2022 (LEP 2022). The approved development for a boarding house, as modified, is permissible with consent in the R4 Zone. Demolition works are permissible with consent under cl 2.7 of LEP 2022. 2. The provisions of the now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) continue to apply (Sch 7A s 2(1)(d) of State Environmental Planning Policy (Housing) 2021). I accept and adopt the submission of the parties that the proposal is compatible with the local area (cl 30A of SEPP ARH) and each of the standards under cl 30(1) of SEPP ARH are complied with. Conclusion 1. I have considered the submissions made by the parties in the Jurisdictional Statement filed with the Court on 11 July 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development Consent No. D/2018/00570 for the adaptive re-use of an existing building as a boarding house, at 319 Trafalgar Street, Petersham, is modified by Modification Application No. MOD/2024/0058 (Annexure A), subject to the consolidated conditions of consent at Annexure B. ………………………. Susan O'Neill 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: 31 July 2024