Plumb v Randwick City Council

Judgment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

1. 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.
2. 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).
3. 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.

[1992] NSWLEC 8

(1999) 106 LGERA 298

(1998) 43 NSWLR 468

(2008) 166 LGERA 342

[2019] NSWLEC 85

[1999] NSWLEC 280