COMMISSIONER: These proceedings arise following the applicant's Class 1 appeal to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal of Modification Application No. DA2018/649/A by the Council of the City of Sydney (Council).
The application seeks consent to amend Development Consent No. DA 2018/649 which approved the demolition of two existing dwellings and structures and the construction of a boarding house at 13-15 Ross Street, Forest Lodge NSW 2037 to permit reconfiguration of the internal layout of the approved boarding house and increase the number of boarding rooms from 20 to 25 (modification application).
On 30 July 2021, the parties participated in a s34 conference before me which was adjourned to allow the applicant time to prepare a suite of amended plans and materials in response to the Council's Statement of Facts and Contentions and the discussions had at the s34 conference.
Broadly, the changes to the application included the following:
Update the size and treatment of the booster cabinet and the subsequent reduction in bicycle spaces.
Increase the size of the window to 1800mm in room 3.
Remove the solid walls of the balconies on the top floor level and replace with battons (to make similar to the treatment on the ground floor).
Note the cladding as being standing seam not mini orb on the materials schedule; and clarify the treatment to the rear boundary, including the movement of the timber paling fence on top of the retaining wall to the actual boundary (on both the architectural and landscape plans) and incorporate landscaping over the retaining wall (amended application).
Having reviewed the amendments, the Council now accepts that the amended plans and additional information has resolved all of the Council's contentions raised in its Statement of Facts and Contentions filed on 12 April 2021.
On 20 August 2021, the Council agreed in accordance with cl 121B of the Environmental Planning and Assessment Regulation 2000 to the applicant uploading the amended application to the NSW planning portal.
On 25 August 2021, the applicant filed the amended application with the Court.
On 14 September 2021, the parties filed an executed s34 agreement setting out the terms of the decision that would be acceptable to them.
Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the 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. In this case, the parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to grant consent to the modification application on a conditional basis.
Before this function can be exercised, there are jurisdictional prerequisites that must be satisfied. The parties addressed the jurisdictional prerequisites they considered relevant in a lengthy jurisdictional submission (Annexure D). Much of that submission was irrelevant to the narrower focus of matters which I must consider for the purpose of exercising the power to grant consent under s 4.55(2). There is simply no requirement to reassess matters of jurisdiction pertaining to the grant of the original consent such as permissibility or compliance with development standards for height or FSR which are not called up by a modification application. As was explained at [54] in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, there are in fact four powers to modify a development consent, three conferred by s 4.55(1), (1A) and (2) and one conferred by s 4.56(1). It was emphasised at [55] that the constraints on the exercise of the four powers vary between the powers and define the type of modification that can be affected by exercise of the powers.
In this instance, the modification sought is made pursuant to s 4.55(2) of the EPA Act.
Specifically, before the power in s 4.55(2) can be exercised, the consent authority must publicly notify the proposed modifications and consider any submissions made concerning the proposed modification (s 4.55(2)(c) and (d)). Understandably, the public are interested in changes to the development that might result from the modification of the development consent, not mere changes in the terms of the development consent that do not effect any change in the development.
Next, there must be a consideration of the extent of the changes - which are constrained by s 4.55(2)(a) "to require the development to which the consent as modified relates being substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified".
Subsection 4.55(3) then requires a consideration of the matters under s 4.15 relevant to the aspects of the development to which the modification application relates. The limitations of this discretion are defined by the matters raised for consideration by the application: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]; and include a consideration of the reasons given by the consent authority for the grant of the consent that is sought to be modified.
To the extent that the requirements in s 4.55(2) concern a consideration of the merits of the application s 34(3) precludes me from undertaking a merit assessment. Provided the decision agreed is within power, I must dispose of the proceedings in accordance with the parties' decision.
With that in mind, I accept that the following relevant jurisdictional prerequisites have been met:
[2]
Notification
Between 15 September 2020 and 30 September 2020, the modification application was publicly exhibited by the Council in accordance with s 4.55(2)(c). Four submissions were received and have been considered in settling the amended application.
[3]
Substantially the Same
In accordance with s 4.55(2)(a), the development to which the consent as proposed to be modified relates is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified.
Whilst there is a difference in the visual presentation of the building, the extent of the modification will essentially or materially have the same essence as the approved development.
1. The physical form of the building will not be substantially different from the form approved.
2. The proposed modifications will alter without radical transformation.
3. The proposed modifications do not alter the approved use of the land.
4. The proposed modifications do not significantly change the relationships to adjoining properties.
5. The proposed modifications do not adversely affect the amenity of neighbouring properties in terms of privacy, overshadowing and views.
6. The proposal remains compatible with the scale of surrounding buildings.
Having taken into consideration the matters in s 4.15(1)(b)-(e) of the EPA Act relevant to the application, the Council is satisfied that the application is acceptable on its merits.
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.
Accordingly, the Court notes:
1. That the Council of the City of Sydney as the relevant consent authority has agreed, under clause 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of the development consent (DA/2018/649) granted by the Council of the City of Sydney on 31 May 2019 by:
1. Increasing the size of window to 1800mm in room 3;
2. Enlarging the waste room to include additional bins;
3. Relocation of the bulky waste room;
4. Relocation of the air-conditioning units;
5. Changing bicycle provision to 14 bicycles;
6. Amendments to ground floor fire egress;
7. Reconfiguration of units 8 and 16 from double to single units;
8. Increase the size of the upper level communal rooms;
9. Addition of louvres along the northern boundary windows;
10. Increase in the height of the window in unit 3;
11. Realignment of planter boxes in front boundary;
12. Update the size and treatment of the booster cabinet;
13. Remove solid walls from top floor balcony level and replace with battons;
14. Change material cladding to standing seam; and
15. Clarification to the treatment of the rear boundary.
1. That applicant has uploaded the amended application on the NSW planning portal on 20 August 2021.
2. That the applicant has subsequently filed the amended application with the Court on 25 August 2021.
The Court orders that:
1. The appeal is upheld.
2. Development Consent No. D/2018/649 is modified in the terms in Annexure B.
3. Development Consent No. D/2018/649 as modified by the Court is Annexure C.
…………………………
S Dixon
Senior Commissioner of the Court
Annexure B (206319, pdf)
Annexure C (427574, pdf)
[4]
Amendments
22 September 2021 - Correction to cover sheet
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Decision last updated: 22 September 2021