the Applicant has uploaded the amended application to the NSW Planning Portal on 4 November 2021; and
2. the Applicant has subsequently filed the amended application with the Court on 5 November 2021.
[2]
Orders
The Court orders that:
1. the appeal is upheld;
2. Development Consent DA/154/2020/A is modified in the terms in Annexure A;
3. Development Consent DA/154/2020/A as modified by the Court is Annexure B.
[3]
Commissioner of the Court
Annexure A (184017, pdf)
Annexure B (568276, pdf)
Plans (42003625, pdf)
Landscape Plan (8773028, pdf)
[4]
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: 24 November 2021
Parties
Applicant/Plaintiff:
Plumb
Respondent/Defendant:
Randwick City Council
Cases Cited (8)
Judgment
COMMISSIONER: This is Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of an application pursuant to s 4.56 to modify Development Application No 154/2020 seeking to modify an approved residential flat building to incorporate the following changes (the Proposed Modification) at 20 Glen Avenue Randwick legally identified at Lot 26 DP 7611 (the Site):
1. Level 1 (i) Basement extended west to provide for a second exit, and to relocate the bin room from level 3. (ii) Basement vents added to western wall.
2. Level 2 (i) Unit 1 increased in size with the addition of new Bedroom 4 and new playroom, with the western elevation all extended to the rear boundary. (ii) Windows / doors added for playroom and Bedroom 4 and a small indent to provide additional landscaping. (iii) Rear deck extended towards the rear boundary. (iv) Unit 1, Bedroom 1 robe reconfigured and window deleted.
3. Level 3 (i) Unit 2 increased in size with the addition of new Bedroom 4 and new playroom, with the western elevation wall extended to the rear boundary. (ii) Windows added for playroom and bed 4. (iii) Rear deck extended towards the rear boundary. (iv) Bed 1 robe reconfigured, and window deleted. (v) Planter adjacent to bin room removed and plant room (batteries for solar) reconfigured. (vi) Bin room replaced with bulky good storage, and car list stop deleted.
4. Level 4 (i) Reconfigured Bedroom 2.
5. Level 5 (i) Lift door repositioned 90 degrees to eastern list shaft wall and laundry relocated. (ii) Unit 4 entry moved to align with eastern lift wall. (iii) Unit 4 robe reconfigured and ensuite added.
6. Roof Level (i) ORB finish replaced with MET (ii) Mechanical riser overrun and basement exhaust duct added.
On 16 February 2021 Commissioner Walsh in Plumb v Randwick City Council [2021] NSWLEC 1067 pursuant to s 34 of the Land and Environment Court Act 1979 upheld the appeal and granted development consent to the residential flat building the subject of the Proposed Modification.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 4 and 5 November 2021. I have presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the Proposed Modification subject to conditions.
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 parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to approve the Proposed Modification.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.56 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Note which I summarise below.
Modification Power
The relevant jurisdictional requirements are contained in subss 4.56(1)-(1A) of the EPA Act, which provides as follows:
(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if -
(a) it is 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 granted and before that consent as originally granted was modified (if at all), and
(b) it has notified the application in accordance with -
(i) the regulations, if the regulations so require, and
(ii) 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 applications for modification of a development consent, and
(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The first matter is to form a position opinion that the Proposed Modification is substantially the same as the development for which the consent was originally granted. The power to modify a consent is a power "to alter without radical transformation" the consent (Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468). The result of the comparison between the original consent and consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Arrage v Inner West Council [2019] NSWLEC 85). Both a qualitative and quantitative comparison is required (Moto).
A Joint Expert Report prepared by Anthony Betros, Town Planner for the Applicant and Gerard Turisi, Town Planner for the Respondent was filed on 26 October 2021 (JER Planning). Both expert planners agree that the amended proposal remains substantially the same development as the original grant of approved. (JER Planning, par 9). They undertake a qualitative and a quantitative comparative assessment.
The qualitative comparative assessment by the experts concludes as follows:
1. The proposed use as a residential flat building will not be altered;
2. The general envelope of the proposal is extended to the west to accommodate the addition of a new bin room and pedestrian exit from the basement (as required by clause D1.2 of the BCA) to the rear as well as an extension of levels 2 and 3 so that the rear setback is reduced from 13.801m to 11.261m (to the north side of the balcony) and from 12.998m to 10.458m at the south side of the balcony;
3. The architectural style remains the same;
4. The impacts on neighbouring properties are substantially the same as the extension of the built form is behind a secondary dwelling at 22 Glen Avenue and is ameliorated to 18 Glen Avenue by articulation of the southern façade.
From a quantitative comparative assessment, the changes between the approved plans (revision C) and the modification plans (revisions H and I) are set out in the following table:
Approved Proposed Updated
Rev C Rev H & I (Section 34 agreement)
Part 2, Part 3 storeys. Part 2, Part 3 storeys.
FSR: 0.79:1
0.74:1 being an additional 26.88m2
(GFA 430.18m2) (GFA 457.06m2)
0.75 FSR = 433.5m2 GFA Equates to 5.4% over 0.75 FSR of 433.5m2
Units: Units
2 x 2 bedrooms 2 x2 bedrooms
2 x 3 bedrooms 2 x 4 bedrooms plus playroom
Setbacks (rear): To balcony edge:
10.458m (south side balcony)
To balcony edge: 11,261m (north side of balcony)
12.998m (south side balcony) Reduction in setback by 2.54m equates to a 19.5% reduction to approved setback
13.801m (north side of balcony) 3.34m greater than DCP requirement of 7.12m (15% of block length)
To building edge: To building edge
16.018m (south side balcony) 13.408m (south side balcony)
16.821m (north side of balcony) 14.221m (north side of balcony)
Reduction in setback by 2.6m, equates to a reduction of 16.2% to approved setback
Balcony depth: Unit 1 & 2: 2.8m
Unit 1 & 2: 2.85m Reduction of 0.05m from approved
Balcony Area Unit 1: 18.58m2
Unit 1: 25.96m2 Reduction of 7.38m2 equates to 28.4% reduction
Unit 2: 26.75m2 Unit 2: 18.58m2
Reduction of 8.17m2 equates to 30% reduction.
Building footprint: Length of levels 2 and 3
Length measured from fire stairs to the rear elevation (edge of balcony) South elevation: 30.1m
Length of levels 2 and 3: Equates to 7.4% increase
28.01m North elevation: 30.9m
Equates to 10.3% increase
Building height: To rear elevation measured from ground to top of balustrade of balcony to unit 2 along section line 2: 4.9m
4.1m (4.6m under height limit)
Open Space Landscape 321.94m2 (55.5%)
Landscape 342.21m2 (59.2%) 5.9% reduction
Deep Soil 222.54m2 (38.5%) Deep Soil 192.97m2 (33.4%)
13% reduction