COMMISSIONER: This Class 1 appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the deemed refusal by Canterbury Bankstown Council (the Respondent) of modification application No DA-422/2018/B seeking to modify the consent granted in respect of DA-422/2018 (the original consent) for a 6-storey shop top housing development at 684-700 Canterbury Road, Belmore (the site).
The modification application seeks the following amendments to the approved development:
1. Extension of lift overrun to provide access to rooftop communal open space.
2. Provision of solar panels.
3. Minor changes to internal layouts of two units.
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 11 October 2023.
Prior to the conciliation conference, the parties agreed on certain amendments that, in the view of the Respondent, resolved the matters in contention.
Accordingly, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 10 October 2023, with additional information provided on 17 October 2023.
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 development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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 [23].
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
Firstly, 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons:
1. In general terms, the modification application is for a shop top housing development in substantially the same form and scale as originally approved, other than an addition of a lift overrun which has been designed to be substantially contained within a roof form, addition of solar panels to a roof that is the subject of consent, and minor amendments to internal layouts to two units.
2. Quantitatively, there is a highly localised increase in height of the development of 1.095m for the lift overrun, within that part of the approved development that is a storey higher than the communal open space intended to be served by the lift, an increase of 470mm in height to an existing roof by reason of the installation of solar panels, and an increase in the parapet surrounding the solar panels by 150mm.
3. Qualitatively, the modification application is substantially the same in form, scale and environmental impact as originally approved, other than for improved access and amenity to the communal open space, and improved environmental performance. Assessing the qualitative aspects of the development demonstrates there is no difference in the extent or areas of overshadowing from the proposed modification when compared to that of the original consent.
The modification application was notified by the Respondent in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one written submission was received. I have considered the issues raised in that submission and I note the proposed modification does not impose any impacts of a sort identified in the submission beyond those imposed by the development the subject of the original consent.
Pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following:
1. The site is located in the B5 Business Development zone according to the Canterbury Local Environmental Plan 2012 (CLEP), in which shop top housing development was permitted with consent, according to the land use table applicable at the modification application was lodged.
2. The maximum allowable height is 18m under cl 4.3 of the CLEP. The original consent was for a maximum height of 18.31m above existing ground level, for which a written request, prepared in accordance with cl 4.6 of the CLEP justifying the contravention of the height of buildings development standard was provided and upheld. The original consent was granted notwithstanding the height non-compliance. The proposal exceeds the height permitted under the height of building standard at cl 4.3 of the CLEP. However, for the reasons shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act is a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the CLEP does not apply to modification applications.
[2]
Environmental Planning and Assessment Regulation 2021
In respect of the EPA Regulation, I note the modification application is accompanied by the written consent of the owner of the land.
Section 102 of the EPA Regulation prescribes the form of statement to be provided by a qualified designer where such a statement was a requirement of the original development application, as was the case here. The statement required by s 102(2) is in virtually identical terms to that required by s 29 of the EPA Regulation, but, where the qualified designer is not the author of the original development, verification that the modification does not diminish or detract from the design quality of the original development, nor compromise the design intent of the original development, must be sought from the relevant design review panel, and not the author of the statement (s 102(4)).
While the Respondent has a Design Review Panel (DRP), it is not constituted in accordance with Pt 3 of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65), and so s 102(4) of the EPA Regulation is not engaged.
Instead I am assisted by a design statement prepared by Ms Liljana Ermilova (Arch Reg No: 7887), in respect of those matters to be taken into consideration at cl 29(2) of SEPP 65 and I am satisfied Ms Ermilova is a qualified designer as defined in the Dictionary of the EPA Regulation, being a person registered as an architect in accordance with the Architects Act 2003.
On the same basis I am also satisfied that adequate regard has been had to the design quality principles, and the objectives specified in the Apartment Design Guide for the relevant design criteria, pursuant to cl 30(2) of SEPP 65.
[3]
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
The modification application is accompanied by a BASIX certificate (Cert No 958578M_05, dated 11 August 2022) prepared by GAT and Associates in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that continues, notwithstanding its repeal, to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.
[4]
Conclusion
I have also taken into account those reasons provided by the Canterbury Bankstown Local Planning Panel in determining Development Application DA-422/2018 by the grant of consent, as summarised in the Statement of Facts and Contentions authored by the Respondent.
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.
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.
The Court notes that:
1. the Respondent as the relevant consent authority has agreed, under section 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA-422/2018/D to rely on the following Amended Architectural Plans prepared by CD Architects (Job No J18433D):
DA1001 Cover Sheet (Rev S) dated 26 June 2023
DA1002 Compliance Table (Rev K) dated 26 June 2023
DA1108 Level 5 (Rev M) dated 26 June 2023
DA1109 Roof Plan (Rev L) dated 26 June 2023
DA2001 North Elevation (Rev L) dated 16 May 2023
DA2002 South Elevation (Rev O) dated 26 June 2023
DA2003 East Elevation (Rev I) dated 26 June 2023
DA2004 West Elevation (Rev J) dated 26 June 2023
DA3003 Section C (Rev D) dated 26 June 2023
DA7001 GFA Calculation (Rev I) dated 26 June 2023
DA7005 Common Open Space Diagram (Rev L) dated 26 June 2023
DA9050 Level 5 Comparison Sheet (Rev B) dated 26 June 2023
1. The Applicant has filed the amended plans and documents listed above with the Court on 24 October 2023.
[5]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development Consent DA-422/2018 is modified in the terms in Annexure A.
3. Development Consent DA-422/2018 as modified by the Court is Annexure B.
[6]
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Decision last updated: 27 October 2023