COMMISSIONER: This is an appeal by Freedom Development Group Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/0531 (the application).
The application as lodged sought consent under the EPA Act for the demolition of existing structures and construction of a boarding house at 393 Kingsway, Caringbah (No. 393).
The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R4 High Density Residential zone in which the site is situated under the Sutherland Shire Local Environmental Plan 2015.
The Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held between February and April 2019. I presided over the conciliation.
At the first conciliation conference, the Council raised a number of contentions which the Council considered could largely be addressed if the site and development was amalgamated with the site and boarding house development proposed next door which was, in essence, in the control of the same parties. That development was the subject of a separate appeal to the Court (18/98975) being for 391 Kingsway, Caringbah (No. 391). Appeal 18/98975 had been the subject of conciliation which had been terminated on the basis that the parties could not come to an agreement. Appeal 18/98975 was set down for hearing in mid-April.
During conciliation, the Applicant agreed to amend the application to incorporate the adjoining site, being No. 391. Whilst still remaining on separate lots, the site therefore now comprised 391 and 393 Kingsway and the amended application proposed two boarding houses with nil setbacks to the common boundary, and a common basement extending across that boundary. This development form would enable greater setbacks to other side boundaries resulting in improved amenity for future residents and objecting neighbours, including in terms of improved solar access, privacy and outlook. It would also enable additional landscaping and an improved streetscape presentation relative to two separate boarding houses on two narrow lots. It also facilitated a common basement, with reciprocal access proposed by way of easements, and a single crossover to Kingsway.
Owner's consent was provided from the owner of No. 391 Kingsway for that site to be included in the amended application for No. 393.
On the basis of these amendments, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement was filed with the Court along with a discontinuance notice for Appeal 18/98975.
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 agreement was supported by written submissions prepared by Ms J Reid, counsel for the applicant, addressing the jurisdictional question of whether the amended application could reasonably be considered the same application, including given the amendments extended the development across two properties. Her submissions addressed the relevant provisions to amend an application found at cl 55 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) and the Court's power under s 29(2) of the LEC Act to enable this amendment prior to the determination of the application.
Ms Reid referenced the decision of Talbot ACJ in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40]:
It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly, to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broach approach to the application of Regulation 55 is therefore appropriate.
Ms Reid also referenced the decision of Bignold J where a development application was able to be amended to include additional land in Rose Bay Afloat Pty Ltd v Woollahra Council & Anor (2002) 126 LGERA 36; [2002] NSWLEC 208. She also referenced a recent decision of Sheahan J being a review of the Registrar's decision to allow an amendment of a development application in Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6 which involved an extension of a use over an additional parcel of land. Justice Sheahan applied Bignold J's comments in Rose Bay Afloat and found that the Registrar's decision to allow the amendment was reasonable in the circumstances.
Ms Reid submitted that the amended application did not comprise a (new) original application for the following reasons:
The proposed development remains a boarding house with basement parking, albeit in an enlarged form. The essence of the development remains the same. The amendments or variations, although creating a 'changed development', have not converted the application into an original application with an extended 'development site'. Accordingly, it is reasonable to conclude that the amendments are within the scope of clause 55 of the Regulation.
Ms Reid went on to submit that it was reasonable for the Court to exercise the beneficial and facultative power conferred by cl 55 of the Regulation in this instance as:
The parties agree on the form of development, being a development that is consistent with the character of the locality pursuant to clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009.
The amendment will result in a less complicated set of conditions to achieve the intended development;
The changes are responsive to the concerns of Council.
The application was referred to Roads and Maritime Services (RMS) given the site adjoined Kingsway, a state significant road under State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP). The site also fronts a power pole and 33kv HV aerial line requiring concurrence from Sydney Trains under the Infrastructure SEPP.
The application is also required to be assessed under the provisions of the ARH SEPP, including consideration of the development having regard to the local character of the area at cl 30A.
As indicated, the parties identified the jurisdictional prerequisites of relevance in these proceedings including the ability to amend the application, the concurrence requirements under the ISEPP and the provisions of the ARH SEPP.
Having regard to the submissions made, and noting that the application was amended to comprise an integrated development over 391-393 Kingsway as sought by the Council in order for a beneficial built form, access and development outcome, I am satisfied that the parties' decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
Further, the requirements of RMS and to obtain Sydney Trains concurrence under the Infrastructure SEPP are incorporated as conditions of consent and the application has been amended, in part, to respond to the local character considerations under cl 30A of the ARH SEPP.
Conditions are proposed requiring easements to be created for joint use of the basement and access to it by occupants of both boarding houses.
Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.
Accordingly, the Court orders that:
1. The Applicant is given leave to amend the development application and rely upon the plans listed at conditon1 in Annexure A.
2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000.
3. The appeal is upheld.
4. Development application lodged with Council, as amended, seeking approval for construction of a shared basement straddling No. 391 and 393 Kingsway and construction of two boarding houses totalling 65 rooms at No. 391 & 393 Kingsway is approved subject to the conditions in Annexure A.
[2]
Annexure A
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Decision last updated: 05 April 2019