Land and Environment Court New South Wales Medium Neutral Citation: Whiteway House (No.348) Pty Ltd v Waverley Council [2019] NSWLEC 1350 Hearing dates: Conciliation conference on 23 May 2019 Date of orders: 25 July 2019 Decision date: 25 July 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The Court orders: (1) The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans and landscape plans referred to in condition 1(a) and (b) of Annexure A. (2) The Appeal is upheld. (3) Modification Application No. 450/2012/A for modification of Development Consent No. 450/2012 for the demolition of the existing backpacker hostel and the erection of a four storey residential flat building containing 13 dwellings with basement parking and landscaping at 63 Fletcher Street, Tamarama is approved subject to the conditions in Annexure A. (4) As a consequence of Order (3), Development Consent No. 450/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Whiteway House (No. 348) Pty Ltd v Waverley Council [2016] NSWLEC 1089 Category: Principal judgment Parties: Whiteway House (No.348) Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: C McEwen SC (Applicant) M Staunton (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/74125 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a modification application made pursuant to s 4.56 of the EPA Act to modify Development Consent No. 450/2012 (the development consent). The development consent was granted by the Court on 29 March 2016 (Whiteway House (No. 348) Pty Ltd v Waverley Council [2016] NSWLEC 1089) for the demolition of an existing backpacker hostel and erection of a four storey residential flat building containing 16 dwellings over basement parking at 63 Fletcher Street, Tamarama (the site). 2. The modification application seeks to modify the development consent as follows: * Reduction of the number of apartments from 16 to 13 and reconfiguration of basement car park; * Extension of uppermost floor level southward by an addition 74sqm and 26sqm terrace to Unit 13 in an area approved for non-trafficable roof; * Minor extension into approved recesses on the northern and eastern alignment of Unit 13 on Level 3; * Reconfiguration of the internal layout of apartments on Ground Level, Level 1 and Level 2; * Reconfiguration of building entry lobby spaces to access from Fletcher Street (as opposed to Dellview Street); * Changes to location and size of entry window openings across the southern, western, northern and eastern elevation; * Change in apartment numbers and mix; and * Addition of 1 car parking space. 1. On 23 May 2019, the applicant was granted leave to rely upon a further amended modification application which further modified the proposal as follows: * A reduction in the southern projection of Unit 13 by 2m and a corresponding reduction in the southern extremity of the terrace; * Deletion of the 800mm wide planter around the terrace which is replaced by a glass balustrade; * A further setback from the western boundary by 1m to align with the western wall of the lift; * A reduction in gross floor area of Unit 13 from 205sqm to 179sqm; and * All of the roof area other than the terrace area is to be non-trafficable. 1. 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 23 May 2019. I presided over the conciliation conference. 2. 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. 3. 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 4.16 of the EPA Act to grant consent to the development application. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.56(1) of the EPA Act. As a result of the changes for which leave was granted on 23 May 2019, I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified, for the following reasons: * The modification does not result in a radical transformation of the development; * As a result of the changes, the modified development, with the exception of the top level, is contained within the approved building envelope; * The configuration and alignment of Level 3 after further amendments does not unreasonable undermine the important, essential and fundamental aspect of the original development that resulted in a building that stepped with the topography and contained the unit to the top half of the building on the Fletcher Street side, away from the lower density development to the south of the site in Dellview Street. 1. 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. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans and landscape plans referred to in condition 1(a) and (b) of Annexure A. 2. The Appeal is upheld. 3. Modification Application No. 450/2012/A for modification of Development Consent No. 450/2012 for the demolition of the existing backpacker hostel and the erection of a four storey residential flat building containing 13 dwellings with basement parking and landscaping at 63 Fletcher Street, Tamarama is approved subject to the conditions in Annexure A. 4. As a consequence of Order (3), Development Consent No. 450/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ……………………………… Susan O'Neill Commissioner of the Court Annexure A (226 KB) Annexure B (441 KB) ********** Amendments 30 October 2019 - By consent and pursuant to UCPR 36.17, amend the conditions in Annexures A and B of the Court's orders of 25 July 2019 by: 1. Substituting the description of the BASIX Certificate in Condition 1(c), which currently reads as: "BASIX Certificate; 0003814126 dated 30 April 2019 issued by Pete Waller (Acc No. 20322)" with "BASIX Certificate; 783257M dated 29 May 2019 prepared by NASIX Certificate Centre" in both Annexures A and B; 2. Inserting the following description of the Nathers Certificate, previously omitted from Condition 1 in both Annexures A and B: "(d) Nathers Certificate; 0003898770 dated 29 May 2019 issued by Peter Waller MODIFIED BY DA-450/2012/A)" 3. Substituting the word "SUPERSEDED" in Condition 2(a) and (c) with the word "DELETED" in Annexure B; 4. Deleting "Privacy screening / translucent glazing to a minimum height of 1.6m measured above finished floor level shall be provided to the western perimeter (ie west elevation and south facing indent) of the western balcony of unit 13" in Condition 2(d) in 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: 30 October 2019