Land and Environment Court New South Wales Medium Neutral Citation: RPNA Water Views Pty Ltd v Northern Beaches Council [2020] NSWLEC 1225 Hearing dates: Conciliation conference on 2, 9 and 30 April 2020 Date of orders: 20 May 2020 Decision date: 20 May 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court Orders: (1) The Applicant is granted leave to rely on the amended plans referred to in condition A1.1 in Annexure "A". (2) The appeal is upheld. (3) Modification Application No. MOD2019/0245 for the modification of Development Consent DA 549/08 (s.4.55(8) Environmental Planning and Assessment Act 1979) at 2129 Pittwater Road Church Point, is approved and the development consent is modified as set out in the conditions in Annexure "A". Catchwords: MODIFICATION APPLICATION – modification of conditions of consent – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Boston Blyth Fleming Pty Ltd v Pittwater Council [2010] NSWLEC 1203 Category: Principal judgment Parties: RPNA Water Views Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Hewitt (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: HWL Ebsworth (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/400838 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its modification application MOD2019/0245. The modification application (under s 4.55(8) of the EPA Act) seeks the following amendments to the approved development: 1. Delete Lot H, DP 415249, No. 2133 Pittwater Road and the associated vehicular access from the site. 2. Provision of new access to the basement of Building B and C via the basement access for the remainder of the development from Pittwater Road. 3. Create a single interconnected basement to serve the development. 4. Modification of conditions of consent. 1. The consent to be modified authorised the demolition of existing structures and the construction of a 10 unit senior's housing development at 2129 and 2133 Pittwater Road, Church Point. 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 2 April, 9 April and 30 April 2020. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is that the appeal, as amended by Order 3, is upheld and the amended modification application is approved. 4. 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 have formed this state of satisfaction for the following reasons: 1. I am satisfied that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted: s. 4.55 (2) (a) of the EPA Act. Qualitatively, the proposal results in a residential flat building consistent with the building approved by the development consent. I am satisfied that there is no essential element of the development the subject of the consent that is being altered by the modification application. Quantitatively, the proposed residential flat building as modified provides an alternative access and a consolidation of the basement car park. Although the deletion of the previous access to the development is a significant change, the overall form and character of the development is retained. I am satisfied the modifications sought are not such as to render the proposed development not substantially the same; 2. the modification application was notified in accordance with the relevant development control plan and the requirements of s. 4.55(2) (c) of the EPA Act; 3. the submissions received have been taken into consideration in the assessment and determination of the application; and 4. in making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent by the Court in Boston Blyth Fleming Pty Ltd v Pittwater Council [2010] NSWLEC 1203. 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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to rely on the amended plans referred to in condition A1.1 in Annexure "A". 2. The appeal is upheld. 3. Modification Application No. MOD2019/0245 for the modification of Development Consent DA 549/08 (s.4.55(8) Environmental Planning and Assessment Act 1979) at 2129 Pittwater Road Church Point, is approved and the development consent is modified as set out in the conditions in Annexure "A". ………………………… D M Dickson Commissioner of the Court Annexure A (267 KB) ********** 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: 20 May 2020