COMMISSIONER: This appeal concerns an application to modify a development consent for a residential flat building at 18-20 Allens Parade, Bondi Junction, which was granted by the Court on 9 March 2021 (see Lavecky v Waverley Council [2021] NSWLEC 1115). The modification sought would alter the upper level (Level 2) to provide an additional bedroom to each apartment and relocate balconies further to the northern boundary. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(1) of the EPA Act. The final orders in this appeal, outlined in [15] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
Following an adjournment of the hearing of the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 16 December 2021. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement came as a result of an amendment to the plans for the modification application, which increases the setback of the upper level relative to the levels below, so as to address issues concerning privacy, overlooking and visual impact. The amendment also changes the roof form, from a traditional hip roof with a transversal horizontal ridge to a hip roof with a pyramidal form where the ridge is formed by a single central apex point at RL 102.227, to address heritage issues. The amended modification application has been lodged on the NSW Planning Portal with the agreement of the Council as the consent authority, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000.
As part of the agreement between the parties, an offer to enter into a Voluntary Planning Agreement ("VPA") was made by the applicant and accepted by the Council. The offer is for a monetary contribution, which will be used for the provision of affordable housing, pursuant to the Waverley Council Planning Agreement Policy 2014.
A signed agreement was filed by the parties on 21 December 2021, and is supported by a Statement of Jurisdictional Prerequisites. The decision agreed upon is for the grant of the modification application and the consequent amendment to the conditions the subject of the consent, pursuant to s 4.56(1) of the EPA Act. This includes a condition requiring entry into the VPA.
As the presiding Commissioner, I am satisfied that the decision to grant the modification application 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, for the reasons that there remain the same number of units with the residential flat building and the alterations do not change any essential physical element of the approved development. The alterations are confined to design and internal layout changes to the upper level and to changes to the roof form, and do not significantly change the development either quantitatively or qualitatively such that it would render the development as modified something that is not substantially the same as that for which consent was granted.
The modification application the subject of the appeal was notified by Council on 14 April 2021 for a period of 14 days, in accordance with s 4.56(2)(b) and (c) of the EPA Act. In response to the notification of the application, 12 submissions were received. I have considered the issues raised in those submissions.
Consistent with the requirements of cl 115(3) of the Environmental Planning and Assessment Regulation 2000, the amended modification application is accompanied by a design verification statement.
Therefore, all the preconditions to the grant of the modification application pursuant to s 4.56(1) have been met.
Further, in exercising the functions of the consent authority, the Court has the power to impose conditions on the modification of the consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 7.7(3), this power extends to the imposition of the condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. This power can be exercised on the approval of a modification application (see Progress & Securities Building Pty Limited v Burwood Council & Anor (No 2) (2008) 158 LGERA 102; [2008] NSWLEC 135 at [22]).
The requirement, pursuant to s 7.5 of the EPA Act and cl 25D of the Environmental Planning and Assessment Regulation 2000, to notify the proposed VPA can be met following the grant of the modification of the consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [270]-[272]).
Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
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 modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.
The Court notes:
1. That the Applicant has amended Modification Application No. DA-88/2019/A with the agreement of Waverley Council (pursuant to clause 121B(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents:
1. Schedule of Changes prepared by Antoniades Architects dated 16 December 2021.
2. Architectural plans prepared by Antoniades Architects:
DA 0.01 Cover Page (Rev Q) dated 16.12.21
DA 3.01 Site Plan (Rev W) dated 16.12.21
DA 3.05 Level 02 (Rev DD) dated 16.12.21
DA 3.06 Roof (Rev AA) dated 16.12.21
DA 3.15 Level 02 Indoor Outdoor Cals. (Rev A) dated 16.12.21
DA 4.01 Sections 1 (Rev V) dated 16.12.21
DA 4.02 Sections 2 (Rev K) dated 16.12.21
DA 4.03 Sections 3 (Rev J) dated 16.12.21
DA 4.04 Sections 4 (Rev D) dated 16.12.21
DA 4.05 Sections 5 (Rev D) dated 16.12.21
DA 5.01 Elevations - South & North (Rev W) dated 16.12.21
DA 5.02 Elevations East & West (Rev X) dated 16.12.21
DA 6.01 Project Data Schedule (Rev R) dated 16.12.21
DA 6.04A Sun Eye View- Jun 21 - 9am (Rev E) dated 16.12.21
DA 6.04B Sun Eye View- Jun 21 - 10am (Rev E) dated 16.12.21
DA 6.04C Sun Eye View- Jun 21 - 11am (Rev E) dated 16.12.21
DA 6.04D Sun Eye View- Jun 21- 12pm (Rev E) dated 16.12.21
DA 6.04E Sun Eye View- Jun 21 - 1pm (Rev E) dated 16.12.21
DA 6.04F Sun Eye View- Jun 21 - 2pm (Rev E) dated 16.12.21
DA 6.04G Sun Eye View- Jun 21 - 3pm (Rev E) dated 16.12.21
DA 6.10 Streetscape Elevation (Rev D) dated 10.12.21
DA 6.21 Sightline Diagrams (Rev G) dated 16.12.21
DA 6.22 Sightline Diagrams (Rev C) dated 10.12.21
DA 6.31 Sightline Diagrams_Plans (Rev F) dated 16.12.21
DA 6.32 Sightline Diagrams_Sections (Rev F) dated 16.12.21
DA 6.33 Sightline Plans - Comparision (Rev E) dated 16.12.21
DA 6.34 Sightline Elevation - Comparision (Rev E) dated 16.12.21
DA 7.01 Elevations Materials (Rev N) dated 16.12.21
1. Design Verification Statement prepared by Andreas Antoniades (Registration number 7954) dated 17 December 2021.
("Amended Application").
1. That the Amended Application was lodged on the NSW planning portal on 17 December 2021.
2. That the Applicant has subsequently filed the Amended Application with the Court on 20 December 2021.
The Court orders that:
1. The appeal is upheld.
2. Development Consent No. DA-88/2019 is modified in the terms in Annexure A.
3. Development Consent No. DA-88/2019 as modified by the Court is Annexure B.
[2]
Commissioner of the Court
195400.21 Gray C (Annexure A) (187702, pdf)
195400.21 Gray C (Annexure B) (332327, pdf)
[3]
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Decision last updated: 24 December 2021