COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by Georges River Council (the Council) to modify development consent No DA2020/0145 for construction of three-storey dwellinghouse, swimming pool, landscaping and site works (approved development) on land identified as Lot A DP 375896, at 3 Cross St, Kyle Bay NSW 2221 (the Site).
The modification application (MOD) sought to modify the approved development as follows:
1. Alteration to the layout of retaining walls at the north-western corner of the Site and inclusion of a detailed landscape scheme as shown on the submitted landscape plans, included terraces, landscaped gardens facing Boronia Street in place of the approved taller walls adjacent to the garage entry;
2. Extension of the approved grassed area towards the north with a new pedestrian connection point to the swimming pool, and introduction of a pathway adjacent to the ground floor verandah;
3. Partial deletion of the approved verandah privacy screen and construction of a 1.8m high timber screen to the northern edge of the extended grass area identified above. Modified rectangular form for the ground floor verandah to a curved edge;
4. Sandstone facing to the approved and proposed walls within the north-west corner of the Site, and a concrete rendered wall against the boundary with No 52 Boronia Street in place of the approved timber fence. The proposed boundary wall has a variable height which responds to the topography;
5. Concrete block retaining wall on the northern edge of the Site's private open space (adjoining No 52 Boronia Street) in place of the approved timber fence;
6. Concrete rendered wall to boundary extending from Cross Street to Boronia Street frontages, with partial timber style aluminium finish;
7. Creation of a bin room with louvred doors at the south-western corner of basement level;
8. Alfresco area - deletion of the east facing window and new 1.2m wide path;
9. Ground floor - internal layout changes to the kitchen / walk-in pantry, reduced study area and enlarged bathroom. Deletion of south facing laundry window, altered window openings to the kitchen and walk-in pantry (included deleted glass sliding doors). Deletion of south facing guest bedroom windows, enlarged ensuite bathroom window and altered window size to the bathroom adjacent to the study;
10. First floor - introduction of a louvred roof over the southern portion of the swimming pool below and replacement of approved window to void fronting Cross Street with a circular window; and
11. Roof - introduction of skylights above the alfresco area and above the master bedroom walk-in robe and bathroom ensuite.
In exercising the functions of the consent authority, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.
The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which commenced on-site on 29 February 2024 and then back to Court. I presided over the conciliation conference.
At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council's contentions. The parties agreed position relied on the Council approving the amendment to the Applicant's modification application pursuant to cl 113(1) of the Environmental Planning and Assessment Regulation 2021.
Under s 34(3) of the LEC Act, I must dispose of the Class 1 proceedings in accordance with the parties' decision if it 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 4.55(2) of the EPA Act to allow the appeal and grant the modification to the development consent No DA2020/0145.
There are jurisdictional pre-requisites which require my satisfaction before the power to grant consent under s 4.55(2) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in an agreed Jurisdictional Statement ("the Statement") provided to the Court.
Taking into account the parties' advice and analysis in the Statement, I am satisfied in regard to the jurisdictional matters set out below.
[2]
Agreed Background Facts
These proceedings were commenced on 4 August 2023. On 1 September 2023, the Respondent filed its Statement of Facts and Contentions (SOFAC).
Since the lodging of the Modification Application, various works on the Site were carried out for which the Applicant did not have development consent.
In circumstances where building work has been undertaken without consent, or where building work has been carried out contrary to the Original Consent, in accordance with s 4.55 of the EPA Act, the effect of granting approval to the Modification Application will therefore be to authorise the use of what has already occurred, such authorisation operating prospectively and not retrospectively: Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [35]. Consistent with the authorities, the Modification Application seeks consent for both:
1. the use of those works constructed without and/or otherwise than in accordance with development consent; and
2. additions and alterations which are yet to be carried out.
The Amended Architectural Plans identify those works for which consent is sought that have been constructed (shaded green) and those additions and alterations which are yet to be carried out (shaded purple).
The agreement reached between the parties is reflected within the amended architectural plans. In addition to those amendments referred to above at paragraph [2], the Modification Application, as amended, seeks approval for an extension of the batten screening along the north of the verandah shown on Sheet 3/26 Issue V.
The parties agree that all contentions raised in the SOFAC have been resolved by the:
1. Amended plans and documents; and
2. Agreed conditions of consent.
[3]
Section 4.55(2)(a) - Environmental Planning and Assessment Act 1979
The Modification Application was made pursuant to section 4.55(2) of the EPA Act. In this regard, the parties agree and 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 approved, and the parties note in the Statement the following:
1. The use of the building remains that of a dwelling house;
2. The overall height of the dwelling remains the same, as does the building envelope, and general configuration of the dwelling; and
3. The majority of the modifications will not be apparent from the streetscape and the amenity impacts upon neighbouring properties have been substantially mitigated by the amendments to the design, in particular, the increase in the setback to the private open space on the north-eastern side on the ground floor level.
[4]
Section 4.55(2)(c)-(d)
The Modification Application was notified from 22 June 2023 to 13 July 2023. Six written submissions were received which are found at Tab 16 of the Respondent's Bundle. Those concerns have been taken into account in the amendments made to the Modification Application.
[5]
Section 4.55(3)-(4)
The parties agree and I accept that the Modification Application can be approved taking into consideration the matters in section 4.15(1)(b) - (e) of the EPA Act.
The parties agree and I accept that the submissions of objectors are a relevant consideration under s 4.15(d) of the EPA Act. As stated 6 submissions were made in response to the Modification Application. The parties agree that the written submissions of objectors have been taken into account and the Modification Application as amended is responsive to those submissions.
The extension of the private open space in the north-eastern corner of the Site has been reduced to reduce any privacy and visual impacts to the neighbouring properties.
The presentation to Boronia Street, and the fencing proposed along the Cross Street frontage have been amended by increasing the deep soil planting in the north-eastern corner of the Site and introducing timber-style elements to the eastern side front fence along Cross Street adjoining 1 Cross Street. These amendments ensure the modifications are consistent with the existing streetscape, and soften the appearance of the overall dwelling, thereby reducing the environmental impacts to an acceptable level.
The modifications involve internal alterations, fencing and walls and alterations to the private open space. None of the jurisdictional prerequisites in the Georges River Local Environmental Plan 2021 are a bar to the approval of the MOD because they are preconditions to the grant of development consent. Section 4.55(4) specifically states the "modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part". Accordingly, where statutory controls are expressed as requiring the Court to have regard to a matter or take into consideration a matter prior to the granting of consent, that obligation is not mandatory as s 4.55(4) of the EPA Act makes it clear that the modification of a development consent is not the granting of development consent.
The Modification Application was assessed against the provisions of Georges River Development Control Plan 2021 with those matters of concern now resolved by the provision of amended plans and further documentation. Those matters are not jurisdictional.
The Original Consent was granted by the Local Planning Panel on 5 November 2020. It was modified by the Local Planning Panel on 28 July 2022 (First MOD Consent). The conditions imposed by the Panel in response to the Original Consent and the First MOD Consent required aspects of the development be altered, namely with respect to the privacy screen along the northern edge of the elevated ground floor verandah and the boundary fence with 52 Boronia Street.
The intent of those alterations was to minimise overlooking impacts between the subject site and 52 Boronia Street, Kyle Bay, and minimise visual impacts from 52 Boronia Street, Kyle Bay.
Those considerations, and the reasons provided above have been taken into account by the parties in reaching agreement on the amendments made which I accept. In reaching agreement I am satisfied the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act.
Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against:
Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; and
The reasons given by the consent authority for the grant of the Consent.
[6]
State and Local Environmental Planning Instruments
Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant EPIs and planning controls. I refer to the analysis undertaken in the Statement and accept the agreed position of the parties.
[7]
Conclusion
Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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.
[8]
Notations
The Court notes that:
1. The Council as the relevant consent authority under s 113 of the Environmental Planning and Assessment Regulation 2021, agreed to the Applicant amending the Modification Application No MOD2023/0075 ('Modification Application') in accordance with the following amended plans and documents:
1. Architectural Plans (Issue V) prepared by David De Chiara Designs dated 29 February 2024;
2. List of Changes prepared by David De Chiara Designs dated
29 February 2024;
3. Landscape Plans (Rev 5) prepared by Monaco Designs Pty Ltd dated
5 February 2024;
4. Survey Plans prepared by Ensure Consulting Pty Ltd dated
9 February 2024;
5. Stormwater Plan (Rev C) prepared by M.M.Farah Civil/Structural Pty Ltd dated 22 November 2023;
6. Structural Engineering Plans, prepared by M M Farah Pty Ltd dated November 2020, September 2022 and December 2022;
7. Engineering Certificate, prepared by M M Farah Pty Ltd dated
26 February 2024;
8. Arboricultural Impact Assessment and Tree Protection Plan prepared by The Ents Tree Consultancy dated 23 October 2023;
9. BASIX Certificate No. 1088001S_08 dated 16 February 2024;
10. NatHERS dated 15 February 2024.
(collectively, the 'Amended Modification Application')
1. The Applicant filed the Amended Modification Application with the Court on 1 March 2024.
[9]
Orders
The Court orders that:
1. The appeal is upheld.
2. Modification Application No. MOD2023/0075 for alterations and additions, including use, to the approved three-storey dwelling house and swimming pool, landscaping and site works is approved.
3. Development Consent No. DA2020/0145 is modified in the terms set out in Annexure A.
4. Development Consent No DA/2020/0145, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.
[10]
Acting Commissioner of the Court
247747.23 Annexure A
247747.23 Annexure B
[11]
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: 03 May 2024
[12]
The parties agree and I accept that the Modification Application can be approved taking into consideration the matters in section 4.15(1)(b) - (e) of the EPA Act.
The parties agree and I accept that the submissions of objectors are a relevant consideration under s 4.15(d) of the EPA Act. As stated 6 submissions were made in response to the Modification Application. The parties agree that the written submissions of objectors have been taken into account and the Modification Application as amended is responsive to those submissions.
The extension of the private open space in the north-eastern corner of the Site has been reduced to reduce any privacy and visual impacts to the neighbouring properties.
The presentation to Boronia Street, and the fencing proposed along the Cross Street frontage have been amended by increasing the deep soil planting in the north-eastern corner of the Site and introducing timber-style elements to the eastern side front fence along Cross Street adjoining 1 Cross Street. These amendments ensure the modifications are consistent with the existing streetscape, and soften the appearance of the overall dwelling, thereby reducing the environmental impacts to an acceptable level.
The modifications involve internal alterations, fencing and walls and alterations to the private open space. None of the jurisdictional prerequisites in the Georges River Local Environmental Plan 2021 are a bar to the approval of the MOD because they are preconditions to the grant of development consent. Section 4.55(4) specifically states the "modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part". Accordingly, where statutory controls are expressed as requiring the Court to have regard to a matter or take into consideration a matter prior to the granting of consent, that obligation is not mandatory as s 4.55(4) of the EPA Act makes it clear that the modification of a development consent is not the granting of development consent.
The Modification Application was assessed against the provisions of Georges River Development Control Plan 2021 with those matters of concern now resolved by the provision of amended plans and further documentation. Those matters are not jurisdictional.
The Original Consent was granted by the Local Planning Panel on 5 November 2020. It was modified by the Local Planning Panel on 28 July 2022 (First MOD Consent). The conditions imposed by the Panel in response to the Original Consent and the First MOD Consent required aspects of the development be altered, namely with respect to the privacy screen along the northern edge of the elevated ground floor verandah and the boundary fence with 52 Boronia Street.
The intent of those alterations was to minimise overlooking impacts between the subject site and 52 Boronia Street, Kyle Bay, and minimise visual impacts from 52 Boronia Street, Kyle Bay.
Those considerations, and the reasons provided above have been taken into account by the parties in reaching agreement on the amendments made which I accept. In reaching agreement I am satisfied the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act.
Pursuant to s 4.55(3) of the EPA Act, the Council considered the amended Modification Application against:
Such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the proposal, as amended; and
The reasons given by the consent authority for the grant of the Consent.
[13]
State and Local Environmental Planning Instruments
[14]
Statutory planning controls applicable to the Site and the proposed development were considered by the Respondent in the previous assessment undertaken for the grant of consent. The modification proposed by this application does not raise any new jurisdictional issues which would alter previous conclusions at the development assessment stage such that I am required to re-consider each of the relevant EPIs and planning controls. I refer to the analysis undertaken in the Statement and accept the agreed position of the parties.
[15]
Based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, the decision is one 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.
[16]
(1) The Council as the relevant consent authority under s 113 of the Environmental Planning and Assessment Regulation 2021, agreed to the Applicant amending the Modification Application No MOD2023/0075 ('Modification Application') in accordance with the following amended plans and documents:
(a) Architectural Plans (Issue V) prepared by David De Chiara Designs dated 29 February 2024;
(b) List of Changes prepared by David De Chiara Designs dated
(d) Survey Plans prepared by Ensure Consulting Pty Ltd dated
9 February 2024;
(e) Stormwater Plan (Rev C) prepared by M.M.Farah Civil/Structural Pty Ltd dated 22 November 2023;
(f) Structural Engineering Plans, prepared by M M Farah Pty Ltd dated November 2020, September 2022 and December 2022;
(g) Engineering Certificate, prepared by M M Farah Pty Ltd dated
26 February 2024;
(h) Arboricultural Impact Assessment and Tree Protection Plan prepared by The Ents Tree Consultancy dated 23 October 2023;
(i) BASIX Certificate No. 1088001S_08 dated 16 February 2024;
(j) NatHERS dated 15 February 2024.
[17]
(collectively, the 'Amended Modification Application')
[18]
(2) The Applicant filed the Amended Modification Application with the Court on 1 March 2024.
[19]
(1) The appeal is upheld.
(2) Modification Application No. MOD2023/0075 for alterations and additions, including use, to the approved three-storey dwelling house and swimming pool, landscaping and site works is approved.
(3) Development Consent No. DA2020/0145 is modified in the terms set out in Annexure A.
(4) Development Consent No DA/2020/0145, as modified by the Court, is subject to the consolidated modified conditions set out in Annexure B.