Land and Environment Court New South Wales Medium Neutral Citation: Protea Holdings NSW Pty Limited v Woollahra Municipal Council [2024] NSWLEC 1681 Hearing dates: Conciliation conference on 18 October 2024: submissions 22 October 2024 Date of orders: 28 October 2024 Decision date: 28 October 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) Modification Application DA171/2015/7 (as amended) for the modification of DA171/2015/1 relating to 6-10 Cecil Street Paddington is approved. (2) Development consent DA171/2015/1 relating to 6-10 Cecil Street Paddington is modified in the terms in Annexure A. (3) Development consent DA171/2015/1 relating to 6-10 Cecil Street Paddington as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION – modification to Plan of management for boarding house – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Land Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2021, Div 3 Cases Cited: Cracknell & Lonergan Architects Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1443 Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 Category: Principal judgment Parties: Protea Holdings NSW Pty Limited (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: J Palmer (Solicitor) (Applicant) J Ede (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2024/211730 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking modification of Development Application DA171/2015/1 that was granted by the Court on 27 September 2016 (the original consent) for the adaptive reuse of an existing building and the construction of a new boarding house comprising 19 rooms and basement parking at 6-10 Cecil Street, Paddington. 2. The Modification Application filed with the Court on 7 June 2024 seeks to modify the original consent by amending the Plan of Management approved at the time, and as a consequence, amend the conditions of consent in respect of the original consent. 3. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 ('LEC Act') on 18 October 2024, at which I presided. 4. At the conciliation conference, the parties reached agreement as to those matters in dispute, and the Respondent approved the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 18 October 2024. 6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the proposed modification, noting that the final detail is specified in the agreed conditions of consent annexed to the s 34 agreement. 7. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [18]. 8. 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)), which is set out in the following terms. 9. Firstly, with respect to s 4.55(8) of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted in Cracknell & Lonergan Architects Pty Ltd v Woollahra Municipal Council [2016] NSWLEC 1443, when the reasons given for the grant of consent are considered, in accordance with s 4.55(3) of the EPA Act. In doing so I have also considered whether the modification will effect some change to the development the subject of the original consent (see Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [63]). 10. The original consent was for both physical alterations to an existing warehouse building to make that building suitable for use and occupation as a boarding house, and for the use of the subject land and building as a boarding house. The use component of the development as originally approved was subject to certain constraints set out in conditions I.1- I.10, including a requirement that management of the boarding house be in accordance with a particular plan of management, in condition I.2, read together with condition A.2. The modification application seeks to modify the constraints on the use of the land as a boarding house, and so modify the use the of the land. Accordingly, I accept there is a modification to the development itself, and not merely the conditions of consent. 11. On the basis of the agreed conditions of consent, I am also satisfied that the proposed modification is of minimal environmental impact because of the limitations that operate to apply reasonable limits in the duration of use of the communal areas. 12. Secondly, I record here that the modification application has been notified, and the parties advise me that no objections have been received. 13. Thirdly, I have also taken into consideration those matters under s 4.15(1) of the EPA Act as they are relevant to the modification application, as well as the reasons given by the Court for the grant of the consent in the original consent. I note State Environmental Planning Policy (Housing) 2021 (Housing SEPP) does not apply to the modification application as the modification is to an original consent granted prior to the commencement of the Housing SEPP. I also note that the development as it is proposed to be modified complies with the provisions of Div 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 which deals with Boarding Houses. 14. Fourthly, I am satisfied as the presiding Commissioner, for the reasons that follow, that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. Conclusion 1. 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. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. Woollahra Municipal Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA171/2015/7 to incorporate the documents listed below: 1. Management Plan for Boarding House prepared by Cracknell Lonergan Architects dated 16 October 2024. 2. Social Impact Statement prepared by Judith Stubbs & Associates dated October 2024. Orders 1. The Court orders that: 1. Modification Application DA171/2015/7 (as amended) for the modification of DA171/2015/1 relating to 6-10 Cecil Street Paddington is approved. 2. Development consent DA171/2015/1 relating to 6-10 Cecil Street Paddington is modified in the terms in Annexure A. 3. Development consent DA171/2015/1 relating to 6-10 Cecil Street Paddington as modified by the Court is Annexure B. T Horton Commissioner of the Court 211730.24 Annexure A 211730.24 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: 28 October 2024