Land and Environment Court New South Wales Medium Neutral Citation: AP Development No. 2 Pty Ltd v North Sydney Council [2024] NSWLEC 1487 Hearing dates: Conciliation conference on 1 and 26 July 2024 Date of orders: 13 August 2024 Decision date: 13 August 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent DA 114/2022 is modified in the terms set out in Annexure A. (3) Development consent DA 114/2022 as modified is Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – residential flat building – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 North Sydney Local Environmental Plan 2013, cll 4.3, 6.10 Category: Principal judgment Parties: AP Developments No. 2 Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: T Sattler (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/453161 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by North Sydney Council, of Modification Application DA/144/22/3 which seeks to modify Development Consent No DA144/22. This development consent was granted by the Court on 1 February 2023, for the demolition of existing structures and construction of a part four-part five storey residential flat building, including 18 apartments and two levels of basement car parking at 7-11 Premier Street, Neutral Bay. 2. The modification application seeks a number of modifications to the approved residential flat building as part of the design development for the project. In summary, as per the planning report by Ethos Urban dated 13 September 2023 (the planning report) and the parties' submission, this includes: 1. The extension of apartments G01, G04, 101 and 104 to the rear to match the excavation line of the levels below and above; 2. The addition of a new fire egress passage to both the lower and upper basement levels; 3. Deletion of the ground floor off street entry to apartment G03 and G04; 4. Amendment of condition C38 to remove the requirement for a recycling room at each level, instead proposing a recycling cupboard for the garbage chute; 5. Internal reconfiguration to penthouse apartments 401 and 402 with updated window locations; 6. Amendment to the window locations in units 201 and 301, including the removal of east facing window in the bathrooms of both units; 7. Amendment to the size of the hydrant booster assembly attached to the Premier Street frontage of the façade; and 8. Amendment to the balustrade fence on the front terrace of apartment G01 and G02. 1. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The Court arranged a conciliation conference and hearing under s 34(1) 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. 3. During the conciliation, as a result of discussions between the parties, a number of amendments were made to the modification application with the consent of the Council pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). These amendments result in further minor modifications to the general arrangement due to design development. 4. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify development application DA144/22 in accordance with modification application DA/144/22/3 as amended. However, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties provided a jurisdictional note which addresses the relevant matters engaged by s 4.56 of the EPA Act, and from this I note: 1. The development as modified will retain the approved use and predominant built form in terms of bulk, scale and form. The requested modifications are minor, arising from design development, and result in no discernible environmental impacts. The development retains the same use, general built form, height, FSR, apartment mix and density, and amenity. The development, as modified, will not compromise the amenity of the surrounding area or the natural or cultural heritage of the area. From this, I am satisfied that in both qualitative and quantitative terms, the development, as modified, will be substantially the same as the development for which the consent was originally granted (s 4.56(1)(a)). 2. The modification application was notified in accordance with the Council's notification policy and s 4.56(1)(c), from 27 October to 10 November 2023, and then further notified, as amended, from 5 to 19 July 2024. No submissions were received in either period (s 4.56(1)(b)). 3. Pursuant to the EPA Act s 4.56(1A), I must consider the relevant matters referred to in EPA Act s 4.15(1). In relation to this, the parties submit that the modification does not give rise to any additional considerations pursuant to the North Sydney Local Environmental Plan 2013 (NSLEP) beyond that which was considered in the original consent, except for those pertaining to earthworks. 4. To that end, the application is accompanied by an "Additional Geotechnical Report" by EI Australia that addresses the geotechnical considerations associated with the additional excavation required for the extension of apartments G01, G04, 101 and 104. The report demonstrates consideration of the relevant earthworks-related matters listed in NSLEP cl 6.10, and makes recommendations which have been incorporated into the agreed conditions of consent. 5. An updated BASIX certificate has been provided that relates to the modification application as amended. 6. Pursuant to EPA Act s 4.56(1A), I must also consider the reasons given by the consent authority for the grant of the consent that is sought to be modified. As this matter was determined by the Court as a result of an agreement between the parties made under s 34 of the LEC Act, the reasons for providing consent are not explicit. However, in the planning report, the applicant submits that the original consent was granted for the following reasons: "...the development: ∙ Provides for a mix of two and three-bedroom apartments, all having ample amenity and being high quality housing within a high density residential environment; ∙ Does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area; ∙ Achieves and maintains a height level of residential amenity; and ∙ Is a local development with a minor non-compliance and an adequately justified breach of the height standard. In the circumstances, the contravention of cl 4.3(2) of the NSLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard as regards the determination of the DA." 1. The parties submit, and I accept, that the proposed modification application does not impact or alter these reasons for the grant of consent to the development as approved under DA/144/22. 2. The parties further submit, and I accept, that the modification does not give rise to any additional considerations pursuant to s 4.15(1) beyond that which was considered in the original consent. Conclusion 1. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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. 3. The Court notes: 1. North Sydney Council, as the relevant consent authority approves, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Modification Application DA144/2023/3 to rely upon the following architectural plans and documents: Plan No. Issue Title Drawn by Dated DA101 J Lower Basement Plan PBD Architects 24/6/2024 DA102 J Upper Basement Plan PBD Architects 24/6/2024 DA103 J Ground Floor Plan PBD Architects 24/6/2024 DA104 J Level 1 Floor Plan PBD Architects 24/6/2024 DA105 J Level 2 Plan PBD Architects 24/6/2024 DA106 J Level 3 Plan PBD Architects 24/6/2024 DA107 J Level 4 Plan PBD Architects 24/6/2024 DA108 J Roof Plan PBD Architects 24/6/2024 DA201 J West Elevation PBD Architects 24/6/2024 DA202 J North Elevation PBD Architects 24/6/2024 DA203 J East Elevation PBD Architects 24/6/2024 DA204 J South Elevation PBD Architects 24/6/2024 DA301 J Section A PBD Architects 24/6/2024 DA302 J Section B PBD Architects 24/6/2024 DA400 J Schedule of Materials PBD Architects 24/6/2024 5 K Landscape Master Plan LandFX Landscape Architecture 25/6/2024 6 K Landscape Plan – Ground Level/Foyer LandFX Landscape Architecture November 2022 DA610 J Adaptable Units PBD Architects 24/06/2024 7 K Landscape Plan - Rooftop LandFX Landscape Architecture 25/6/2024 8 K Landscape Sections A&B – Northern and Southern Boundaries LandFX Landscape Architecture 25/6/2024 9 K Landscape Section C – East West Site Section LandFX Landscape Architecture 25/6/2024 10 K Indicative Materials and Finishes Palette LandFX Landscape Architecture 25/6/2024 11 K Indicative Planting Palette LandFX Landscape Architecture 25/6/2024 400 K Planting Schedule LandFX Landscape Architecture 25/6/2024 401 K Planting Plan Upper Basement LandFX Landscape Architecture 25/6/2024 402 K Planting Plan Ground Floor LandFX Landscape Architecture 25/6/2024 403 K Planting Plan Level 1 LandFX Landscape Architecture 25/6/2024 404 K Planting Plan Level 2 LandFX Landscape Architecture 25/6/2024 405 K Planting Plan Level 3 LandFX Landscape Architecture 25/6/2024 406 K Planting Plan Level 4 LandFX Landscape Architecture 25/6/2024 701 K Landscape Details LandFX Landscape Architecture 25/6/2024 800 K Landscape Specification LandFX Landscape Architecture 25/6/2024 - - Arboricultural Impact Assessment Report Apex Tree and Garden Experts 31/5/2024 E25529.G03 - Geotechnical Investigation 7-11 Premier Street, Neutral Bay NSW EI Australia 14/4/2022 P00177 001 Noise and Vibration Impact Assessment E-LAB Consulting 27/4/2022 E25529.E01 0 Preliminary Site Investigation EI Australia 18/3/2022 22044-DA R1.1 Access Report Access I Pty Ltd 27/4/2022 3843 E Operational Waste Management Plan Elephants Foot 8/1/2024 - - BCA Capability Statement Code Consultancy Group 15/09/2023 23362-L01a - Fire Engineering Statement Innova Services Australia 12/09/2023 1. The Court orders: 1. The appeal is upheld. 2. Development consent DA 114/2022 is modified in the terms set out in Annexure A. 3. Development consent DA 114/2022 as modified is Annexure B. E Washington Commissioner of the Court ********** Annexure A Annexure B Amendments 13 September 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR 2005), Annexures A and B are amended. 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: 13 September 2024