COMMISSIONER: These proceedings are an application made to the Court to modify a Development Consent for Seniors Living which was granted by the Court on 26 August 2021. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the Modification Application pursuant to s 4.55(1A) of the EPA Act. The application is made by Armada Avalon Pty Ltd (Applicant) and the Respondent in the matter is Northern Beaches Council.
The Court granted development consent no. DA2016/1260, on 26 August 2021, for demolition works and construction of a seniors housing development on the Site, comprising 10 self-contained dwellings for seniors or people with a disability and basement parking for 20 resident vehicles and 2 visitor spaces, site consolidation and removal of 45 trees. The decision by Horton C in Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490 conveniently sets out the basis for which the original Development Consent was granted, including the imposition of various conditions.
On 20 October 2022, the Court modified the Development Consent pursuant to Modification Application number MOD2022/0397 which modified the footprint of each of the four buildings, glazing, the configuration of waste and hydrant booster, location of heating and cooling units, tree removal, and materials and finishes, roof over the central staircase, landscaping and amendments to conditions 1a, 10B and 34, with the deletion of condition 10 (Armada Avalon Pty Ltd v Northern Beaches Council [2022] NSWLEC 1573).
On 12 May 2023, the Applicant filed a Class 1 Application with the Court pursuant to s 4.55(8) of the EPA Act, seeking to further modify the Development Consent to rely upon Keoride as a method of public transport and reconfiguration of the footpath works. These proceedings were determined by Byrne AC in Armada Avalon Pty Ltd v Northern Beaches Council (3) [2024] NSWLEC 1387 with the decision allowing the use of Keoride as a method of public transport to meet the legislative requirements for access to and from the development.
The current application is to further modify development consent no. DA2019/1260 issued by the Court on 26 August 2021. The Modification Application seeks changes to the Seniors Living development, for the minor increase in height of the lift overrun and carpark and garbage room exhaust structure, and minor modification of the front fence design (to allow for signage). The relevant owners consent is also provided.
The Modification Application was notified by the Respondent between 2 May 2024 and 16 May 2024. One submission was received in response.
The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over the conciliation conference which was held on 5 July 2024. The parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties, during the conciliation process. 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.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.
In deliberating as to whether the decision is a decision that the Court could have made, in the proper exercise of its functions, I have had regard to the following:
1. As this is a Modification Application, I must firstly be satisfied that the development to which the Development Consent, as modified, is "substantially the same" as the development for which Development Consent was originally granted. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. The Statement of Environmental Effects also sets out how the modification works are of minimal impact, and the parties agree with those conclusions. I am also satisfied that the proposed development, as modified, passes the requisite test for "substantially the same".
2. In accordance with s 4.55 of the EPA Act the Modification Application was notified by the Respondent and subsequent submissions considered by the parties. The parties had regard to the submissions made in respect to the proposed development. I am satisfied that the notification requirements have been met.
3. A BASIX Certificate was provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The parties agree that the modification application does not result in a development that is inconsistent with the BASIX Certificate and therefore a new certificate is not required.
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State Environmental Planning Policy (Industry and Employment) 2021
This Modification Application includes a modification to the front fence design to provide a suitable area for the provision of a wall sign that includes the street number, development name and a symbol or logo for the development. The sign is a "building identification sign" for the purposes of the State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment). The parties agree that the signage is consistent with the objectives of Ch 3 of the SEPP Industry and Employment and satisfies the assessment criteria specified in Sch 5 of the SEPP.
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State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
1. State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors 2004) applies to the Site and the Modification Application as the approved development is for a seniors housing development consisting of 10 in-full self-care housing dwellings.
2. Chapter 1 of the SEPP Seniors 2004 sets out the preliminary requirement such as the land to which the policy applies. Chapter 2 sets out key concepts relevant to the policy. The parties agree that the Modification Application does not alter the development's compliance with Chs 1 or 2 of the SEPP.
3. Clause 31 provides that in determining a development application for development for the purposes of in-full self-care housing, a consent authority must consider the Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004, published on the Department's website. The parties agree that the Modification Application does not alter the proposal's consistency with the design guidelines.
4. Clause 32 of SEPP Seniors 2004 provides that a consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Pt 3, Div 2. The parties agree that the Modification Application does not alter the proposal's consistency with any design principles.
5. Clause 40 of SEPP Seniors 2004 sets out the specific standards that the development application must comply with. The Modification Application does not result in changes to the Site's size or frontage. As set out on page 14 of the Statement of Environmental Effects, prepared by Sutherland Planning, the increased height of the lift overrun and garage and car park exhaust structure remain below the 8 metre height limit set out in cl 40(4) of SEPP Seniors 2004.
6. Clause 41 of SEPP Seniors 2004 provides that a consent authority must not consent to a development application made pursuant to Ch 3 of the SEPP Seniors 2004 to carry out development for the purpose of a hostel or self-contained dwelling unless the proposed development complies with the standards specified in Sch 3 for such development. The parties agree that the Modification Application does not alter the proposal's compliance with the standards in Sch 3.
The parties have also considered the reasons for the grant of the Development Consent as set out in Armada Avalon Pty Ltd v Northern Beaches Council [2021] NSWLEC 1490 and agree that the Modification Application does not alter any aspects of the development that are critical to those reasons.
As the presiding Commissioner, I am satisfied with the considerations of the parties and that the decision to approve the modification application is a decision that the Court could have made in the proper exercise of its functions. I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the agreement between the parties.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.
The Court notes that:
1. The Respondent, Northern Beaches Council, as the relevant consent authority, pursuant to section 113 of the Environmental Planning and Assessment Regulation 2021, approves the Applicant amending Modification Application no. MOD2024/0220 to include the following amended plan and document:
1. Letter of Owner's Consent prepared by Armada Avalon Pty Ltd dated 30 May 2024; and
2. Detailed Signage Plan, Drawing No. 001 prepared by Sign Kiosk dated 27 May 2024.
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Orders
The Court orders that:
1. The appeal is upheld.
2. The Modification Application seeking to modify Development Consent No. DA2019/1260 is approved and the Development Consent is modified as set out in Annexure A.
3. The Modification Application to Development Consent No. DA2019/1260, as approved by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure B.
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Decision last updated: 03 September 2024