Land and Environment Court New South Wales Medium Neutral Citation: Designcorp Architects Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1470 Hearing dates: Conciliation on 07 June 2024 Date of orders: 06 August 2024 Decision date: 06 August 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The modification application pursuant to section 4.55 of the Environmental Planning and Assessment Act 1979, to modify Development Consent No DA698/2021 granted by the Land and Environment Court of NSW on 8 April 2022 for demolition of the existing buildings and the construction of a 4-storey residential flat building with a proportion of the apartments to be dedicated as affordable housing at 13-15 Nicholas Street, Campsie, is approved, subject to conditions at Annexure A. (2) Development Consent No DA698/2021 is modified in the terms set out in Annexure A. (3) Development Consent No DA698/2021, as modified by the Court, is set out at Annexure B. Catchwords: APPLICATION – modification application – application to modify a development consent granted by the Court – inclusion of a substation – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 4.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 100, 102, 113 Cases Cited: Dunlop Chidiac Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1188 Category: Principal judgment Parties: Designcorp Architects Pty Ltd (ACN 107800117) (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2023/443433 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an application to the Court to modify a development consent granted by the Court in Dunlop Chidiac Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1188 for the demolition of the existing buildings and the construction of a 4-storey residential flat building including affordable housing at 13-15 Nicholas Street, Campsie. The modification that is sought is for the addition of an electrical substation and resulting changes to the landscaped and deep soil area. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 7 June 2024. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 30 July 2024, following the Council's approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). 4. 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. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites. Based on the Agreed Statement, the documents that accompany the Class 1 Application, and the documents referred to in [11(1)] below, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act. 5. As the presiding Commissioner, 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 reason that the provision of a substation and associated changes to landscaping causes only a minor quantitative change to the development for which consent was granted, and makes no qualitative change to the form of development, which remains for a residential flat building containing a portion of affordable housing. 6. The modification application was notified by the respondent between 24 January and 13 February 2024 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, there were no submissions received. 7. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 17 July 2024. 8. As required by s 102(2) of the EPA Regulation 2021, the amended modification application is accompanied by a design verification statement dated 22 July 2024, which verifies that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development. 9. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 10. 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 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. 11. The Court notes that: 1. Pursuant to section 113 of the Environmental Planning and Assessment Regulation 2021, the Respondent, as the relevant consent authority, has agreed to the applicant amending its application to modify Development Application No 698/2021 and rely upon the following amended materials filed 2 August 2024: Plan Name Plan No. Date Rev. Prepared By Site/Roof Plan - 12/7/2024 L Design Corp Basement Floor Plan - 12/7/2024 L Design Corp Ground Floor Plan - 12/7/2024 L Design Corp First Floor Plan - 12/7/2024 L Design Corp Second Floor Plan - 12/7/2024 L Design Corp Rooftop Plan - 30/05/2023 F Design Corp Elevations 1 - 12/7/2024 L Design Corp Elevations 2 - 12/7/2024 L Design Corp Streetscape 12/7/2024 L Design Corp Fence Detail - 12/7/2024 L Design Corp Sections A/B - 12/7/2024 L Design Corp Section C - 30/05/2023 F Design Corp Adaptable Units Details - 30/05/2023 F Design Corp Materials & Finishes C26 16/02/2021 D Design Corp Landscaping Calcs - 12/07/2024 L Design Corp Deep Soil Calcs - 12/07/2024 L Design Corp Substation Plan - 12/7/2024 L Design Corp GFA Plan - 30/05/2023 F Design Corp Privacy Plan C31 16/02/2021 D Design Corp Landscape Planting Detail H01 12/7/2024 H Plandrew Design Verification Statement 22 July 2024 Design Corp BASIX Certificate 1226152M_03 17 July 2024 Gradwell Consulting Orders 1. The Court orders that: 1. The modification application pursuant to section 4.55 of the Environmental Planning and Assessment Act 1979, to modify Development Consent No DA698/2021 granted by the Land and Environment Court of NSW on 8 April 2022 for demolition of the existing buildings and the construction of a 4-storey residential flat building with a proportion of the apartments to be dedicated as affordable housing at 13-15 Nicholas Street, Campsie, is approved, subject to conditions at Annexure A. 2. Development Consent No DA698/2021 is modified in the terms set out in Annexure A. 3. Development Consent No DA698/2021, as modified by the Court, is set out at Annexure B. J Gray Commissioner of the Court 443433.23 Annexure A 443433.23 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: 06 August 2024