Collaroy Living Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2024-12-18

Background

This matter concerns an appeal made directly to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant seeking to modify DA2023/0868 (Original Consent). The Original Consent was granted by the Land and Environment Court on 25 June 2024 and approved the demolition of existing dwellings and construction of a seniors housing development at Lots 43-46, Section 12, in Deposited Plan 10648, also known as 37, 39, 41 and 43 Hay Street, Collaroy (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Modification Application

The modification application (Mod2024/0445) sought to amend the Original Consent by: 1. internally and externally reconfiguring the ground and first floors, including changes to windows; 2. extending the front and rear of the ground and first floors; 3. changing the roof and skylights; 4. amending the carpark exhaust; and 5. amending external finishes.
On 8 August 2024, the applicant commenced these Class 1 proceedings.
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 December 2024 and subsequently adjourned. I presided over the conciliation conference.

The Amended Modification Application

At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement was provided to the Court on 19 December 2024 following the applicant amending its Modification Application with the respondent's agreement. The agreed amendments to the Modification Application are summarised in the Addendum Statement of Environmental Effects prepared by DMPS dated 6 December 2024 (SEE Addendum) and include: 1. the addition of a planter to the roof structure above the driveway including associated increase in height to the structure above the garage door to facilitate the planter; 2. amending the glazing line of relevant apartments to be 12m from the eastern boundary; and 3. reducing the size and amending the internal configuration of apartments 6, 9 and 10, (Amended Modification Application).
The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.
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. 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.

Jurisdictional considerations

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 for the reasons that follow:

Owner's consent

The Modification Application is accompanied by letters of consent from the owners of the four properties comprising the Subject Land (see Class 1 Application, tab 1).

The EPA Act

As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.
Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent granted by the Court if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.
For the purposes of s 4.55(2)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons: 1. Quantitatively, the design retains substantially similar levels of compliance with the Original Consent, with minor increases in terms of height and gross floor area as set out in the Jurisdictional Statement (at par 19). The amendments do not propose any additional units or changes to the amount of residents. 2. Qualitatively, in comparing the design as approved versus proposed to be amended, the building design will remain substantially the same in terms of presentation as set out in the Jurisdictional Statement (at par 20). The overall bulk and scale of the building remains relatively unchanged with the majority of alterations to the design being internal. 3. The proposed modifications do not result in a radical transformation of the approved development.
The parties agree that s 4.55(2)(b) of the EPA Act is not relevant to the Amended Modification Application.
For the purposes of s 4.55(2)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.
The Modification Application was notified between 23 August 2024 and 6 September 2024. 25 submissions were received in response to the notification.
In relation to s 4.55(2)(d) of the EPA Act, the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve this matter. To this end, I note that the Court heard from five objectors during the site view associated with the conciliation conference and attended the homes of two objectors. The parties agree that the relevant concerns of objectors have been considered and the Amended Modification Application is responsive to the community's concerns.
Consistent with the Northern Beaches Community Participation Plan, re-notification of the Amended Modification Application during the s 34 conciliation process is discretionary. The parties agreed that it was not necessary to re-notify in this case as the proposed changes did not result in further adverse impacts on adjoining or nearby properties.
In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court - see Collaroy Living Pty Ltd v Northern Beaches Council [2024] NSWLEC 1352) for the grant of the Original Consent.

State Environmental Planning Policy (Resilience and Hazards) 2021

The Subject Land is subject to the provisions in Ch 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP).
The parties agree that the Amended Modification Application does not give rise to any further or additional considerations of the RH SEPP beyond what was considered in the granting of the Original Consent.

State Environmental Planning Policy (Housing) 2021

The State Environmental Planning Policy (Housing) 2021 (Housing SEPP) applies to land zoned R2 Low Density Residential. As such, development for the purposes of 'seniors housing' may be carried out with consent pursuant to s 81. The parties agree that the use of the development remains unchanged by the Amended Modification Application.
The Amended Modification Application proposes a 350mm increase in building height from that approved under the Original Consent. This results in a maximum building height of 8.725m, remaining below the maximum height control as applicable to the Subject Land pursuant to s 84(2)(c) of the Housing SEPP.
The Amended Modification Application proposes an increased floor space ratio (FSR) of 0.607:1, being 21% above the development standard in s 108(2)(c) of the Housing SEPP, or a 10% increase to the approved development. The Applicant's SEE Addendum concludes that the increase in FSR will result in no impact to the bulk and scale of the development. The parties agree that no clause 4.6 request is required as the approval of a modification application is not the grant of development consent.
The Amended Modification Application proposed a minor reduction in landscaped area, however the parties agree that the proposal remains compliant with the minimum requirements in s 108(2)(d) of the Housing SEPP.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

The Development Application for the original consent was lodged on the NSW Planning Portal on 6 July 2023. Pursuant to s 4.2(1)(f) of the State Environmental Planning Policy (Sustainable Buildings) 2022, the Modification Application continues to be subject to the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
As the proposed amendments include minor alterations to the glazing scheme as well as the internal layout of the dwellings, the applicant has prepared an updated BASIX Certificate for the amended design (see Tab 4 of the Section 34 Agreement Bundle).

Warringah Local Environmental Plan 2011

The Subject Land is zoned R2 Low Density Residential under the Warringah Local Environmental Plan 2011 (WLEP). I confirm that I have had regard to the R2 zone objectives. The parties agree that the proposed land use (seniors housing) remains unchanged from the Original Consent.
Pursuant to cl 2.7 of the WLEP relating to demolition, the Amended Modification Application does not propose any additional demolition works on the Subject Land from that approved under the Original Consent. Similarly, for the purpose of cl 6.2 regarding earthworks, the Amended Modification Application does not propose any additional earthworks.

Conclusion

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 Court notes that the respondent, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Modification Application Mod2024/0445 in accordance with the documents listed below: No. Drawing No/Revision Drawing Title Prepared By Date Architectural Plans

                   MOD000/02                                                                                                     RENDER                                        PopovBass            05/12/2024

                   MOD100/02                                                                                                     Title Page                                    PopovBass            05/12/2024

                   MOD101/02                                                                                                     Site Analysis Plan                            PopovBass            05/12/2024

                   MOD102/02                                                                                                     Demolition Plan                               PopovBass            05/12/2024

                   MOD103/02                                                                                                     Excavation Plan                               PopovBass            05/12/2024

                   MOD104/02                                                                                                     Site Plan                                     PopovBass            05/12/2024

                   MOD105/02                                                                                                     Basement Plan                                 PopovBass            05/12/2024

                   MOD106/02                                                                                                     Level 01 Plan                                 PopovBass            05/12/2024

                   MOD107/02                                                                                                     Level 02 Plan                                 PopovBass            05/12/2024

                  MOD108/02                                                                                                     Roof Plan                                     PopovBass            05/12/2024

                  MOD109/02                                                                                                     Basement Post Adaption Plan                   PopovBass            05/12/2024

                  MOD110/02                                                                                                     Level 01 Post Adaption Plan                   PopovBass            05/12/2024

                  MOD111/02                                                                                                     Level 02 Post Adaption Plan                   PopovBass            05/12/2024

                  MOD112/02                                                                                                     Elevations 1                                  PopovBass            05/12/2024

                  MOD113/02                                                                                                     Elevations 2                                  PopovBass            05/12/2024

                  MOD114/02                                                                                                     Section AA & BB                               PopovBass            05/12/2024

                  MOD115/02                                                                                                     Section CC & DD                               PopovBass            05/12/2024

                  MOD116/02                                                                                                     Section EE & FF                               PopovBass            05/12/2024

                  MOD117/02                                                                                                     Section GG                                    PopovBass            05/12/2024

                  MOD118/02                                                                                                     Entry Section & Renders                       PopovBass            05/12/2024

                  MOD119/02                                                                                                     Compliance Diagrams                           PopovBass            05/12/2024

                  MOD120/02                                                                                                     Compliance Diagrams                           PopovBass            05/12/2024

                  MOD121/02                                                                                                     Shadow Diagram: 9:00am June 21                PopovBass            05/12/2024

                  MOD122/02                                                                                                     Shadow Diagram: 12:00pm June 21               PopovBass            05/12/2024

                  MOD123/02                                                                                                     Shadow Diagram: 3:00pm June 21                PopovBass            05/12/2024

                  MOD124/02                                                                                                     Sun Eye Diagrams June 21 Approved & Proposed  PopovBass            05/12/2024

                  MOD125/02                                                                                                     Sun Eye Diagrams June 21 Approved & Proposed  PopovBass            05/12/2024

                  MOD126/02                                                                                                     Sun Eye Diagrams June 21 Approved & Proposed  PopovBass            05/12/2024

                  MOD127/02                                                                                                     Schedule of colours and materials             PopovBass            05/12/2024

                  MOD128/02                                                                                                     3D Diagrams of Changes                        PopovBass            05/12/2024

                  MOD201/02                                                                                                     Notification Elevations 1/2                   PopovBass            05/12/2024

                  MOD202/02                                                                                                     Notification Elevations 2/2                   PopovBass            05/12/2024

                  MOD203/02                                                                                                     Notification Plan                             PopovBass            05/12/2024

Landscape Plans 34. L-00/A Title Page Site+Design Studios 11/12/2024 35. L-01/A Leve 1 Landscape Plan Site+Design Studios 11/12/2024 36. L-02/A Level 2 Landscape Plan Site+Design Studios 11/12/2024 37. L-03/A Landscape Area Calculation Plan - Level 1 Site+Design Studios 11/12/2024 38. L-04/A Landscape Area Calculation Plan - Level 2 Site+Design Studios 11/12/2024 39. L-05/A Planting Schedule and Details Site+Design Studios 11/12/2024 40. L-06/A Specification Site+Design Studios 11/12/2024 41. L-07/A Material Imageries Site+Design Studios 11/12/2024 Supporting Documentation No. Document Date 42. Addendum Statement of Environmental Effects prepared by DMPS Town Planning and Property Development Services 6/12/2024 43. BASIX Certificate 1403626M_04 prepared by Frys Building Consultancy 16/12/2024 44. NatHERS Certificate 9623620 prepared by Frys Building Consultancy 11/07/2024 45. NatHERS Certificate 9623661-01 prepared by Frys Building Consultancy 16/12/2024 46. NatHERS Certificate 9623679-03 prepared by Frys Building Consultancy 11/07/2024 47. NatHERS Certificate 9623711-01 prepared by Frys Building Consultancy 11/07/2024 48. NatHERS Certificate 9623745-01 prepared by Frys Building Consultancy 11/07/2024 49. NatHERS Certificate 9623752-02 prepared by Frys Building Consultancy 16/12/2024 50. NatHERS Certificate 9623786-02 prepared by Frys Building Consultancy 16/12/2024 51. NatHERS Certificate 9623729-02 prepared by Frys Building Consultancy 16/12/2024 52. NatHERS Certificate 9623760-02 prepared by Frys Building Consultancy 16/12/2024 53. NatHERS Certificate 9623778-03 prepared by Frys Building Consultancy 16/12/2024

Orders

The Court orders that: 1. The appeal is upheld. 2. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application Mod2024/0445, as amended, for changes to the internal floor plan of a number of approved units to increase their area, provide for minor changes to landscaping, modify the roof structure to incorporate skylights and modify the garage door location, at 37-43 Hay Street, Collaroy, is approved. 3. Development Consent No DA2023/0868 is modified in the terms in Annexure A. 4. Development Consent No DA2023/0868 as modified by the Court is Annexure B.

Annexure A Annexure B 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: 26 February 2025

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (1)