Sixjay Newport Pty Ltd v Northern Beaches Council

Proposed development

1. The application, as amended and now before the Court under appeal, is described as relating to: 1. Demolition of existing structures, including an existing RFB; 2. Construction of a part 2, part 3 storey RFB comprising of seven three-bedroom apartments, with (two level) basement parking accommodating 16 vehicle spaces; 3. Excavation for basement parking, apartments and associated ground works; and 4. Tree removal, landscaping and associated civil works.

The contentions before the Court in consideration of the (amended) application

1. At the commencement of the hearing the respondent identified the primary contentions as being: 1. an inappropriate response to the slope constraint of the land, resulting in a building with excessive bulk and scale that is inconsistent with the desired character, particularly when viewed across the side setbacks; 2. adverse amenity impacts to future residents and surrounding dwellings; and 3. therefore, not in the public interest.
2. Based on the amendments made to the application, agreed (draft) conditions of consent and expert conferencing/evidence, the Council considers that the other contentions, as raised in the Statement of Facts and Contentions (SoFC, Exhibit 1), have now been resolved or are not pressed.
3. Where there are jurisdictional requirements for consideration, the Court must form its own opinion of satisfaction based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga judgment).
4. An assessment of the merits and relevant jurisdictional requirements of the amended application is addressed below, with the issues raised by residents in objection assessed as part of the Courts consideration.

The Site

1. The site is a regular, rectangular shape, and fronts directly to Nullaburra Road for a length of 20.115m, forming the western boundary. The northern, and southern boundaries are 60.96m in length, and the total area of the site is 1226m2.
2. The site has an existing part two, part three storey RFB, located towards the front setback, with a side facing (north) detached carport structure. At least half of the site, sloping to the rear, is covered by grasses with some exotic trees along the boundaries. There is a detached gazebo along the southern boundary of the site.
3. To the west, north and south of the site, are predominantly single to two/three storey detached residential properties, and to the east, are generally part two, part three/four storey RFB's. Directly to the north of the site is a two storey seniors living residence, with basement parking.
4. The balconies/terraces of residences surrounding the site generally orient to the north and east, capturing the view of the ocean and escarpment.

Relevant planning controls and legal framework for assessment

1. The application seeks to construct a new RFB that relies on existing use rights, being a consistent use with the RFB currently located and operational on the site, pursuant to s 4.66 of the EPA Act, below: 4.66 Continuance of and limitations on existing use(cf previous s 107) (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises - (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. (4) During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.
2. Assessment of the application is made consistent with s 4.67 of the EPA Act, that recognises the continued and existing use of a RFB on the site: 4.67 Regulations respecting existing use (cf previous s 108) (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to - (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.
3. Consistent with s 4.67(3) of the EPA Act, the requirements of s 4.15(1) are relevant for the Court's consideration of the application, as described below: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
4. The proposed rebuilding of a new (albeit larger) RFB on the site, for the same existing use on the site requires development consent, pursuant to cl 44 of the EPA Reg.
5. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from the current landowner of the land that relates to the amended application. It is noted that any future stormwater works that ensure the function of the site, rely on an easement through an adjoining property, and do not form part of the application before the Court. I am satisfied that the proposed stormwater works has been assessed by Council officers as being feasible with minimal environmental impact. Any future stormwater works that require an easement, are addressed in the agreed deferred commencement condition of consent, pursuant to s 4.17(h) of the EPA Act.
6. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, I am satisfied that the applicant has provided sufficient evidence on the existing residential use of the site, which together with the agreed conditions of consent, address the relevant requirements .
7. Pursuant to cl 4, the provisions as described in the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) are relevant for consideration, and pursuant to cl 28, assessment of the RFB is made with consideration of the Apartment Design Guide (ADG).
8. The site is situated over land zoned R2 Low Density Residential, pursuant to cl 2.3 of the Pittwater Local Environmental Plan 2014 (PLEP) and adjoins lands to the east zoned R3 Medium Density Residential. The amended application for a RFB, although not described as permissible in the R2 zone, pursuant to cl 2.3, is deemed permissible with consent, based on the existing use rights (for the same use) that are afforded to the site, pursuant to ss 4.66 and 4.67 of the EPA Act.
9. The controls of the Pittwater 21 Development Control Plan 2014 (PDCP) are a relevant consideration of the Court, particularly in assessing bulk and scale of the proposed development which remains in contention.

Experts

1. The Court was provided with written and oral evidence from the following planning experts: Mr Greg Boston and Ms Kerry Gordon. The applicant's landscape expert, Mr Paul Scrivener, also gave oral evidence. The experts rely on their joint expert report, tendered as Exhibit 3.

Resident submissions

1. In response to notification of the original application, made consistent with the requirements of the PDCP, the Council received 27 (resident) submissions. The (amended) application was renotified, and six submissions in objection were received. The written submission of all objectors is tendered in Exhibit 5, which have been assessed by the Court.
2. In addition, at the start of the hearing, two residents provided oral submissions to the Court, which are summarised in Exhibit 6 and have been considered by the Court.

Is the proposed development compatible with the desired character of the Newport Locality?

1. The primary contention of Council is that the proposed building as designed and sited on the land, is incompatible with the desired (and future) character of the Newport Locality, particularly when viewed across adjoining properties boundaries, due to its likely excessive bulk and scale. The appearance of excessive bulk and scale is in part due to the inappropriate response of the building form to the slope of the land, specifically the siting of unit 7, excavated below existing ground level, and the length of the building.
2. The desired character of the Newport Locality is established and described in A4.10 of the PDCP, and within the R2 zone, is informed by the relevant provisions of the PLEP and PDCP. The Principles in the SEPP 65 and guidance of the ADG also inform the design of the RFB in the context of the desired/existing character of the surrounding locality, and also the design of dwellings within the RFB. Amenity, for future residents and adjoining properties, is assessed relative to the PDCP and ADG.
3. In assessment of the provisions relevant to amended application, the Court is referred by the parties to Senior Commissioner Roseth's decision in Fodor Investments Pty Ltd v Hornsby Shire Council (2005) 141 LGERA 14; [2005] NSWLEC 71 (the Fodor judgement). At [15] of the Fodor judgement, Roseth SC describes the now accepted legal authority that any provisions of a planning instrument, such as the PLEP, that derogate (detract) to have the effect of limiting the size of a future building that is relying on existing use rights, has no effect. This approach to assessment of a development application is considered by the Court as consistent with the intent of s 4.67(3) of the EPA Act, and has been adopted in my assessment of the amended application.
4. On this basis, it is accepted that compliance with the relevant numeric provisions of the PLEP that inform bulk and scale assessment of a building, such as height and floor space ratio, are not the appropriate test to be applied to the amended application now before the Court.
5. In consideration of the amended application, particularly with regards to assessing bulk and scale, and character, as contended, the relevant questions to be addressed are described in the Fodor judgement at [17], as follows: 1. How does the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites? 2. What is the relevance of the building in which the existing takes place? 3. What are the impacts on adjoining land? 4. What is the internal amenity?

Expert evidence

1. The experts accept that there are no specific controls sought by the PDCP that describe or quantify the appropriate the extent of excavation.
2. In assessment of bulk and scale relative to the proposed building form, the experts, and the Court are informed by the residential related outcomes and controls of the PDCP for front/rear/side setbacks, building envelope and landscaped area, as described in D10.8, D10.11 and D10.12, respectively. There are (common) outcomes for the relevant locality specific controls of the Newport Locality, which are described below (noting: S and En are social and environmental outcomes, respectively): To achieve the desired future character of the Locality. (S) To enhance the existing streetscapes and promote a building scale and density that is below the height of the trees of the natural environment. To ensure new development responds to, reinforces and sensitively relates to spatial characteristics of the existing natural environment. (En, S) The bulk and scale of the built form is minimised. (En, S) Equitable preservation of views and vistas to and/or from public/private places. (S) To ensure a reasonable level of privacy, amenity and solar access is provided within the development site and maintained to residential properties. (En, S) Vegetation is retained and enhanced to visually reduce the built form. (En)
3. The experts agree that the proposed building will present to the streetscape consistent with the surrounding residential developments in the R2 zone, within the Newport Locality. The desired character of the Newport Locality, as described in A4.10, is achieved where it relates to streetscape and front setback.
4. The experts assess that the numeric controls for the front and rear setbacks, as described in D10.8 of the PDCP, and the building envelope, with a variation for eaves, as described in D10.11, are also addressed by the proposed development.
5. The experts agree that the numeric controls in D10.8 and D10.12 of the PDCP, relating to side setbacks for an RFB and landscape area in an R2 zone, respectively are not achieved by the proposed development.
6. The proposed development seeks to rely on a minimum side setback of 2.015m, while the PDCP side setback control in D10.8, for an RFB, seeks 3m. The numeric noncompliance of the side setback control is identified along the southern side of the proposed building form, which includes retaining walls. It is noted that the (northern) side setback also contains retaining walls and planter boxes, although within a numerically compliant setback. The experts do not agree that as designed, the outcomes of the control (D10.8) are achieved by the proposed development or that a variation in the numeric side setback control is reasonable.
7. The application estimates a landscaped area of 50.9%, with 48.6% for deep soil, and also relies on planter boxes (Exhibit H). The experts do not agree on the accuracy of the landscaped area calculation, in consideration of the definition in the PLEP, below: landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area.
8. Overall, the experts do not agree that the relevant residential outcomes for the Newport Locality, as described in D10 of the PDCP, are achieved by the proposed development, and therefore whether the building as designed, has an appropriate bulk and scale for its low-density residential context, that achieves the desired character of the R2 zone in the Newport Locality.
9. Council's expert, Ms Gordon asserts there is a lack of appropriate relationship of the proposed building form to the existing slope of the land and to adjoining residences. Ms Gordon considers that the proposed development does not achieve the relevant outcomes described in D10 of the PDCP because the building form is excessive in length down the slope, and relies on excessive excavation to construct the basement and residential accommodation. She does not consider that the building responds appropriately to the existing slope of the land, or to the land on adjoining properties. Ms Gordon expressed concern for the amenity of proposed unit 7 which she considers is 'subterranean'.
10. With regards to the proposed length of the building form and its side setbacks, Ms Gordon evaluates that the central and rear portion of the building will appear as dominant in the landscape. The reliance on excavation is excessive and does not respond to the slope. The proposed plantings along the side boundaries are insufficient to effectively screen the building's dominance due to its length and height as it tracks down the existing slope.
11. Ms Gordon accepts that there are no assessed amenity impacts relating to existing solar access to the lounge areas/private open spaces of adjoining dwellings or to future proposed units on the site, however is concerned that proposed unit 7 will have inadequate solar access internally, particularly to its bedrooms. She conceded that the potential for privacy impacts to adjoining properties has been sufficiently addressed by the proposed screens, described in the plans that support the amended application and agreed conditions of consent.
12. Ms Gordon explained that after the site view, she remains uncertain whether there is a view impact of the escarpment from the adjoining property at 25 Nullaburra Road. It is however recognised that the joint expert report (Exhibit 3) has assessed no view loss (or amenity impact) that would warrant a refusal of the application. She does not dispute that the amenity guidance described in the ADG are addressed.
13. Ms Gordon calculates that the deep soil and total landscaped area, as shown in Exhibit H, is not accurate because the areal estimates do not exclude hard surfaces, such as retaining walls and stormwater pits. Therefore, the numeric control described in D10.12 of the PDCP is not achieved.
14. Ms Gordon assesses that the relevant outcomes of D10 of the PDCP are not achieved.
15. Messrs Boston and Scrivener however express confidence that the proposed plantings described in the landscape plans (Exhibit J) provide sufficient and appropriate plantings. The proposed landscaping will effectively soften the overall bulk and scale of the building, particularly when viewed from adjoining properties. They agree that the landscaping is not relied upon to achieve a reasonable bulk and scale for the proposed building form compatible with the desired character of the area.
16. Mr Scrivener considers that the calculation of the deep soil and total landscaped areas, as described in Exhibit H, are accurate, and sufficient to comply with D10.12 of the PDCP by adopting the variations to the numeric control available for an RFB. Mr Boston supports this assessment, although calculates the total landscaped area as 50.3%, and considers that irrespective of a numeric compliance, the relevant outcomes of D10.12 are achieved.
17. Mr Boston accepts that extensive excavation and earthworks are proposed across the site, however, considers that the appropriate relationship to adjoining properties is maintained by retaining the existing elevation along the boundaries. The proposed stepping down of the building form is consistent with the existing slope of the land, resulting in a building form that responds well to the landform and relates to adjoining properties. There is achievement of numeric height and front/rear setback controls, although accepts there is minor non-compliance of the numeric side setback control. He considers the proposed development demonstrates a building form that has had regard to the surrounding topography and buildings.
18. Mr Boston explains that the proposed RFB does not appear out of character in the R2 zone of the Newport Locality, or with the adjoining R3 zone. The relationship of the proposed building with the streetscape is not in dispute. He assesses that there are no amenity or view loss impacts to adjoining properties or to proposed units on the site. With regards to amenity, he explains that the proposed design of the RFB complies with the relevant provisions of SEPP 65 and the ADG.
19. The experts have appropriately assessed the amended application against the questions posed in the Fodor Judgement at [17], with regards to the relationship of the proposed development on the land with its surrounding context.
20. With respect to character, specifically in assessment of bulk and scale, and the questions posed in the Fodor judgment at [17], the joint expert report (Exhibit 3) explains that: 1. Principle 1 - Whilst the experts agree that the proposed development is consistent within the context of the Nullaburra Road streetscape, they do not agree that the proposed development relates appropriately to surrounding properties in the R2 zone, particularly when assessed against proposed side setbacks and relevant outcomes in D10 of the PDCP. 2. Principle 2 - The experts agree that this Principle has no relevance for consideration in the amended application because the existing RFB is to be demolished. 3. Principles 3 and 4 - The experts agree that there are no assessed amenity or view loss impacts resulting from the proposed development, except to unit 7, which as discussed, remains in dispute.

Findings

1. My findings have considered the evidence of the experts, submission of residents, observations made during the site view, documents/plans supporting the amended application and agreed draft conditions of consent.
2. In consideration of the context and desired character of the Newport Locality, as described in A4.10 of the PDCP, I accept the evidence of the experts and assess that the proposed development is compatible and consistent with the streetscape of the R2 zone within the Newport Locality. The proposed RFB will be viewed from Nullawarra Street as a two-storey building, with a driveway and footpath entry along the northern and southern boundaries, respectively. The front setback will be landscaped, complimenting with other properties in street.
3. The site has a slope that falls naturally across the land, albeit with some historic filling in the lower portions, which will reasonably support a building footprint extending beyond the existing RFB footprint. This however requires excavation to minimise the building height, and bulk and scale. The overall height of the building form through the site is accepted as appropriate to address any potential for view or amenity impacts to adjoining properties.
4. I accept that the land surface has been historically altered due to filling in the rear portion of the site to create a more level area for open space associated with the existing RFB. The existing landform on the site is not inconsistent with the surrounding land, which also generally falls towards the north and east.
5. I understand that the applicant seeks to increase development yield by relying on excavation, specifically to construct the two-storey basement parking and proposed unit 7, both extensively below existing ground surface. It was observed on the site view that the larger/higher density developments east of the site, and including the seniors living (to the north) have also excavated their land to some extent with retaining walls, which increases also dwelling yield.
6. A key issue that remains in dispute is whether the proposed excavation is reasonable and creates an inappropriate building form. The PDCP does not limit, by numeric control, the extent of excavation, although it does express through the character statement in A10 that excavation should relate to the existing landform.
7. I am informed in my assessment of excavation by the desired character description in A4.10 for the Newport Locality, expert evidence, and having visually assessed relationship with the surrounding landform derived from the relative elevations shown on the architectural plans (Exhibit H) and observations made during the site view. My assessment of this issue considers the responsiveness of the proposed development to the natural topography of the land on the site and within its broader context.
8. I find that the excavation proposed is not inconsistent with the landform existing on and adjacent to the site, including developments of similar density, being the seniors living and RFB's surrounding the site, nor found in the R2 zone within the Newport Locality. I accept that proposed unit 7 and the two levels of basement parking are extensively below existing ground surface. However, I assess that these elements respond appropriately to the slope of the land and form part of a building design that is not inconsistent with the desired character of the Newport Locality. The proposed building form appropriately steps down the slope and integrates well with the surrounding landform and within the landscape. I find that the proposed positioning of the building on the site, both in a vertical and lateral sense, effectively minimises the overall bulk and scale of the proposed building, as perceived across the side and rear boundaries of the site.
9. I concur with the evidence of Mr Boston and assess that there are no adverse impacts to views or vistas currently enjoyed by adjoining properties, including to 25 Nullaburra Street. I note that this was not a contention raised in the SoFC, and was agreed as satisfied in the joint expert report. I have considered the submission of the resident and having stood on their land, and find that based on the proposed height of the building form in the rear portion of the site, the views across the escarpment will not be adversely affected.
10. I am satisfied there are no adverse amenity impacts to adjoining properties or internally to proposed units, including unit 7. The proposed units in the RFB achieve the design criteria described in Part 4A of the ADG. The private open spaces of the adjoining residences that currently receive sufficient sunlight and solar access are not adversely impacted, based on assessment of the solar diagrams that support the application. The outcomes and controls in the PDCP, specifically C1.4, are addressed. The potential for privacy impacts are sufficiently addressed by the proposed design, with privacy screens included as described in Exhibit H and adopted in the conditions of consent. The relevant outcomes and controls in C1.1.5 of the PDCP are achieved.
11. I am satisfied that the outcomes of the control relating to setbacks as described in D10.8 are addressed, and that a variation in the numeric side setback control for the RFB is reasonable. I consider that there is sufficient space provided for landscaping along the side setbacks, with elevations retained along the boundary fence and the non-compliance with the numeric setback control along the southern boundary does not cause adverse amenity impacts to adjoining properties. Retaining the elevation and deep soil along the site boundaries assists in the establishment of proposed plantings.
12. I observed that there is effectively little landscaping of any native value currently on the site and am satisfied that the proposed landscaping, as described in the landscape plan (Exhibit J), will enhance the natural features of the environment, providing locally relevant native tree canopy consistent with the proposed building height. The likely effect of the proposed landscaping will soften and complement the building form, consistent with prescribed context of the Newport Locality. I am satisfied that the proposed deep soil and total landscape area on the site sufficiently addresses the relevant outcomes of D10.12 of the PDCP, and are capable to achieve the numeric control, with appropriate variations as described in D10.12 of the PDCP.
13. I am satisfied that the proposed development on this site addresses the relevant outcomes in controls described in D10 of the PDCP, specifically relating to residential development. I assess that the proposed development:

• achieves the desired future character of the Newport Locality,
• enhances the existing streetscape with a more contemporary design of an RFB,
• has a building height and scale with landscaping that responds to the existing landform and spatially relates to the natural environment,
• minimises bulk and scale in built form,
• preserves vistas to the escarpment from adjoining properties, and
• enhances vegetation to reduce the visual perception bulk and scale resulting from the built form to adjoining properties.

1. The effect of the proposed façade modulation, particularly along the northern portion of the development, stepped reduction in height in the (topographically) lower portion of the site, together with the proposed landscape treatment, will enhance the natural environment and relate to adjoining properties.
2. With regards to the questions posed in the Fodor judgement at [17], I find that Principles 1, 3 and 4 are achieved, and agree that Principle 2 does apply to the application. I assess that the proposed development addresses the existing and future context of the Newport Locality, and does not cause adverse amenity impacts to adjoining properties or future residences within the site.
3. I find that the requirements of SEPP 65 and relevant guidance described in the ADG are sufficiently addressed by the proposed development. I am satisfied that the relevant design principles of Schedule 1 in SEPP 65 are addressed. The proposed development is a good design consistent with its context, that achieves a bulk and scale appropriate to the existing and desired character of the street and surrounding buildings. Clause 28 of SEPP 65 is satisfied.
4. I am satisfied that the relevant matters for consideration as described in s 4.15(1) of the EPA Act are addressed. The relevant provisions that inform appropriate bulk and scale, including in the SEPP 65, ADG and PDCP are satisfied, and the proposed development is suitable for the site.

Have the resident objections been considered?

1. Residents were given the opportunity, during notification of the original application and amended application, to provide written submissions on the application. These submissions have been tendered in evidence.
2. In addition, two residents provided oral submissions at the start of the hearing. These oral submissions are summarised and submitted in evidence for assessment by the Court.
3. I am satisfied that the residents have had sufficient opportunity to assess the application and address the Court, pursuant to s 4.15(1)(a)(ii) of the EPA Act. I am also satisfied that the issues raised by objectors have been considered by the experts and where appropriate, are addressed by amendments made to the application, pursuant to s 4.15(1)(d).
4. I have considered the submissions of residents and am satisfied that the proposed development, as amended, together with the adopted conditions of consent, sufficiently address the concerns raised by residents. I have assessed that the proposed building has a bulk and scale that is consistent with the existing landform, is appropriate to the size of the site, does not cause adverse amenity impacts and achieves the desired character of the Newport Locality.

Is the (amended) application in the public interest?

1. After consideration of the evidence before the Court, and matters of relevance to this amended application, I find that the amended application is in the public interest, addressing s 4.15(1)(e) of the EPA Act. The amended application: does not cause adverse amenity impacts to future residents or surrounding properties; complements the desired character of the Newport Locality and; supports the natural habitat of the Newport Locality.

Costs

1. The respondent seeks for the Court to address costs associated with amendments made to the application during the proceedings, pursuant to s 8.15(3) of the EPA Act, below: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies.
2. In response to the amendments made to plans and documents supporting the application, the respondent has agreed that some issues in contention were addressed. However, considers that the amendments that were made to the application and granted leave to rely on specifically in Exhibits H and J, resulted in further and unexpected assessment costs associated with Council's experts.
3. It is agreed by the parties that the changes to plans and documents granted leave before and during the hearing were generally positive in resolving key contentions, and it is my opinion these amendments also resulted in a better design outcome that has generally assisted the planning experts in giving their evidence.
4. I assess that the amendments to the application granted leave to rely on, including in Exhibits H and J as pressed by the respondent, were 'minor'. They do not substantially change the design of the building nor the application, and within the context of the proposed development are considered a minor amendment.
5. As the amendments to the application relating to each Notice of Motion granted leave by the Court are considered minor, an order for costs thrown away is not made, pursuant to s 8.15(3) of the EPA Act.

Conditions

1. Based on the findings described above, I determine to grant conditional consent to the application as amended, pursuant to ss 4.16(1)(a) and (3) of the EPA Act, and impose conditions, as described in Annexure A, pursuant to s 4.17(1).
2. I adopt the draft conditions of consent in full as agreed by the parties, which were amended and filed on 10 February 2023, tendered as Exhibit 4.

Conclusion

1. The amended application has been assessed, based on the evidence before the Court, including the (amended) supporting plans, documents, agreed conditions of consent, expert reports and submissions from residents.
2. The assessment of the amended application is made consistent with the existing use rights afforded to the site for a RFB, pursuant to s 4.66 and 4.67 of the EPA Act. In determining to grant consent to this amended application, I find that the development application satisfies the requirements of the relevant regulatory instruments, namely and as assessed in this judgement the EPA Act, EPA Reg and SEPP 65. The reasons for my determination have considered that the proposed development: is compatible with the desired character of the R2 zone and Newport Locality; does not cause adverse amenity impact to future residents and adjoining properties; and is in the public interest.
3. I therefore determine to grant consent for Development Application DA/2021/2621, with conditions, pursuant to ss 4.16(1)(a) and 4.17 of the EPA Act.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application DA/2021/2621, which seeks demolition of existing structures, and construction for a part 2, part 3 storey residential flat building with basement parking, landscaping and associated civil works on Lot 83 Sec 2 Deposited Plan 4689, also known as 27 Nullaburra Road, Newport is determined by the grant of consent, subject to conditions in Annexure A. 3. The exhibits are returned, except for Exhibits A and B.

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Annexure A 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: 14 March 2023