COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent of an application to modify Development Consent DA 47091/2015 by adding an additional level and reconfiguring units at Lots 9 and 10 Deposited Plan 38586 known as 3 and 5 Lynn Avenue, Point Frederick (the site).
A heritage item, the residence known as "Corra Lynn" occupies part of the site and is retained as part of the approved development and the development as proposed to be modified.
On 5 August 2020 I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act).
At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the modification application and to modify the development consent in the manner described below.
The conciliation was adjourned on two occasions whilst the parties finalised the agreed documents.
On 1 September 2020 the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle.
Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.
The parties' agreement involves the Court exercising the function under s 4.55 of the EP&A Act to grant the application to modify the development consent.
Section 4.55(2)(a) of the EP&A Act required that I must be satisfied that the modified development "is substantially the same development" as the originally approved development (Preston J in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [19]). The comparison to be made is between the approved development and that as proposed to be modified. The quantitative and qualitative changes must be identified, then compared and evaluated (Arrage at [14]). The modified development must be essentially or materially the same, and the nature of the development must remain the same.
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As to quantitative matters the parties have stated:
1. There is a proportionately small increase in unit numbers (by 1) increasing the total to 19;
2. the height increases to 21.2m from 18.6m; a 13.9% increase;
3. there is one additional storey taking the building from five to six storeys;
4. the additional storey is limited to the northern end of the building, leaving the existing four storey element street presentation unaltered;
5. the floor space ratio is increased to 1.25:1 from 1.16:1, or 7.7%;
6. the unit mix is largely unaltered with the additional unit;
and therefore the proposal as modified is substantially the same in a quantitative sense.
As to the qualitative comparison, the parties have stated:
1. there is minimal additional adverse impact on the heritage item, no material additional overshadowing of adjoining property, and no material additional view affectation;
2. the modified proposal limits the ability to perceive the new top storey from Lynn Avenue by setting back the balcony adjoining the living room and replacing the louvres on the balcony from the bedrooms with a balustrade;
3. the site area devoted to deep soil landscaping will reduce marginally from 34.4% to 33.1% as a result of the additional basement area. This reduction is on the southern side of the approved building, at the rear of Corra Lyn, and along the rear third of the southern boundary. No change to the setback of the ground floor wall at that point is proposed. The type of planting already approved along that length of wall is not typical of deep soil planting, reflective of its southern aspect;
4. the modification has an acceptable heritage impact. The additional impact of the added top storey will be marginal or imperceptible for a person viewing the development due to the high angle of view required to see the penthouse storey. The features of most significance as regards the impact on the heritage item are not height, but features that do not change such as composition, form, detailing, articulation, materials, texture, colour, sight lines and curtilage;
5. there is no significant additional overshadowing impact.
and therefore the proposal as modified is substantially the same in a qualitative sense.
For the reasons provided by the parties I am satisfied that the modified development is substantially the same development as the originally approved development in accordance with s 4.55(2)(a) of the EP&A Act.
The following matters are also relevant:
1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. A BASIX Certificate has been provided in compliance with that Policy.
2. Consideration has been given to the provisions of State Environmental Planning Policy 65 and a Design Verification Statement has been provided.
3. Consideration has been given to clause 5.10 of the Gosford Local Environmental Plan 2014 relating to the impact on the heritage item Corra Lynn.
Having considered the material provided to the Court 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 Court Act.
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.
The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 s 4.15 of the EP&A Act.
The Court orders:
1. The Applicant is granted leave to amend modification application to modify Development Application DA 47091/2015 to rely on the plans and documents referred to below:
No. Document Date
Architectural Plans, prepared by Ian Burl Architects (required plans with BASIX Stamp)
Drawing No Description Issue Date
A1000 Site Plan N 24 April 2020
A1001 View Analysis N 24 April 2020
A1002 Sectional View Analysis N 24 April 2020
A1100 Basement Plan N3 19 August 2020
A1201 Ground Floor Plan N5 24 August 2020
A1201-1 Ground Floor Glazed Opening Schedule N 24 April 2020
A1202 1st Floor Plan N 24 April 2020
A1202-1 1st Floor Glazed Opening Schedule N 24 April 2020
A1203 2nd Floor Plan N 24 April 2020
A1203-1 2nd Floor Glazed Opening Schedule N 24 April 2020
A1204 3rd Floor Plan N 24 April 2020
A1204-1 3rd Floor Glazed Opening Schedule N 24 April 2020
A1205 4th & 5th Floor Plans N 24 April 2020
A1205-1 4th Floor Glazed Opening Schedule N 24 April 2020 April -August 2020
A1205-2 5th Floor Glazed Opening Schedule N 24 April 2020
A1206 6th Floor Plan N4 22 August 2020
A1206-1 6th Floor Glazed Opening Schedule N2 11 August 2020
A1207 Roof Plan N3 19 August 2020
A1500 North Elevation N3 19 August 2020
A1501 South Elevation N3 19 August 2020
A1502 East Elevation N5 24 August 2020
A1503 West Elevation N2 11 August 2020
A1600 Section 1-1 N3 19 August 2020
A1601 Section 2-2 N3 19 August 2020
A1700 Solar Shadows March 21 N 11 August 2020
A1701 Solar Shadows June 21 N 11 August 2020
A1702 Solar Shadows December 21 N 11 August 2020
A1800 Streetscape View / West Elevation N2 11 August 2020
[2]
Landscape Plans, prepared by Precinct Landscapes
Drawing No Description Issue
2163B-1D of 4 Site Landscape Works Landscape Plan 1D
2. 2163B-2D of 4 Site Landscape Works Details 2D 2 April 2020
2163B-3D of 4 Site Landscape Works Specification 3D
2163B-4D of 4 Site Landscape Works Planting Schedule 4C
[3]
Civil Plans, prepared by Halcrow & Associates
Drawing No Description Sheet Issue Date
19.04.021 Basement Car Park Plan CP.1 of 2 A 19 August 2020
19.04.021 Vehicle Swept Paths CP.2 of 2 A 19 August 2020
3. 19.04.021 Stormwater Management Plan-1 DA.1 of 5 A 11 October 2019
19.04.021 Stormwater Management Plan-2 DA.2 of 5 A 11 October 2019
19.04.021 Stormwater Management Plan-3 DA.3 of 5 A 11 October 2019
19.04.021 Stormwater Management Details DA.4 of 5 A 11 October 2019
19.04.021 Erosion & Sedimentation Control Plan DA.5 of 5 A 11 October 2019
[4]
Design Verification Statement, prepared by Ian Burl April 2020
Statement of Heritage Impact, prepared by Graham Hall April 2020
Conservation Policy, prepared by Graham Hall May 2015
Schedule of Conservation Works, prepared by Graham Hall March 2016
Waste Management Plan, prepared by Chris Maroon 15 June 2015
Basix Certificate No A210347 (Dwelling) 20 January 2015
Basix Certificate No. 1043727M-03 (RFB) 25 August 2020
Aboricultural Impact Assessment, prepared by Advanced Treescape Consulting 9 December 2010
Assessment of Traffic & Parking Implications, prepared by Transport & Traffic Planning Consultants January 2015
Geotechnical Review, prepared by Douglas Partners 16 March 2016
Arborist Report, prepared by Abacus Tree Services 22 March 2016
Water Cycle Management Plan Ref 1904021, Revision A, prepared by Halcrow & Associates 16 October 2019
QS Report (Amended Development), prepared by Kengreen Consulting Pty Ltd 30 August 2020
Assessor Certificate No. 0005140710, prepared by Gavin Chambers/Building Sustainability Assessments 25 August 2020
[5]
The appeal is upheld.
2. The application to modify Development Application DA 47091/2015 by the reconfiguration of units and to include a new sixth floor/Level 7 penthouse level/unit is approved.
3. As a consequence of the approval of the application, the conditions of development consent DA 47091/2015 are modified in accordance with the modified conditions of consent annexed hereto and marked "A".
[6]
Acting Commissioner of the Court
Annexure A (275288, pdf)
[7]
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: 18 September 2020