COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of an application to modify a development consent Modification Application No. MOD-18-00331, seeking consent to modify Development Consent No. JRPP-15-02703, approved by the Sydney West Central Planning Panel (as it was then known) on 11 April 2017 for development described on the Notice of Determination as "[d]emolition of existing structures, tree removal, superlot subdivision of land including the construction of new roads and 6 x 4 storey residential flat building comprising 200 apartments, with basement car parking, landscaping and common open space embellishment". The approved development is to take place in 2 stages, with the modification application seeking to amend works proposed as part of stage 2. The modification application seeks to amend the approved development as follows (the Proposed Modification):
1. Moving the southern boundary of the site to include an area relinquished by Roads and Maritime Services (RMS), resulting in an increase to the developable area by 655m2, and bringing the total site area to 10,695m2.
2. Increasing the number of units in Stage 2 from 100 to 115 (resulting in 215 units in total).
3. Changes to the unit mix, resulting in 33 x 1-bedroom units, 162 x 2-bedroom units and 20 x 3-bedroom units inclusive of 24 adaptable dwellings.
4. Redesign of Building E, including changing the building footprint from an L-shape to a U-shaped building.
5. Increasing the height of Buildings D, E and F as follows:
1. Increasing the floor to floor height in Building D from 2900mm to 3100mm.
2. Provision of an additional storey in Building E at sub-terrain level, resulting in an additional 12 units.
3. Increasing the floor to floor ceiling height in Building F from 2900 mm to 3000mm, and provision of an additional storey in Building F resulting in an additional 3 units.
1. Reconfiguration and increase of the basement to accommodate 18 additional parking spaces (resulting in a total of 278 total spaces) and to provide 3.5m headroom clearance for garbage truck pick up.
2. Changing the ground floor landscaping and public domain, including:
1. Relocating 2 substations;
2. Lowering landscaping in the central courtyard to provide 3 new units of the same layout of Block F on the ground level with courtyard access; and
3. overall landscaping adjusted to conform to new Block E and changed site boundary.
1. Changes to site levels throughout Stage 2 of the development.
2. Amendments to road design and locations.
3. Modifying the approved stormwater treatment for Stage 2.
4. Changing the building numbering starting from the eastern corner building stage 1 on road 2 and going counter-clockwise; and renaming the buildings A through to F.
The Proposed Modification is sought on land at 103 Schofields Road, Rouse Hill legally described as Lot 8 in DP 1190434 (the Site).
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 7 and 28 October 2021, 5 and 11 November 2021, 1, 10 and 17 December 2021 and 27 and 28 January 2022. 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 to the development consent 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 4.55(2) 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 4.55 of the EPA Act to modify a consent.
The parties are satisfied that the only matters on which the Court must form an opinion or reach a state of satisfaction, or otherwise relate to whether the parties' agreement comprises a decision the Court could have made in the proper exercise of its functions, are as set out below:
1. the modification application has been made under section 4.55(2) of the EPA Act; and
2. the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified for the reasons set out in paragraph 11 of the Applicant's statement of facts and contention in reply filed on 5 October 2021 which, for completeness I reproduce as follows:
"11. The proposed development is 'substantially the same' as the original development consent for the purposes of section 4.55(2) of the EP&A Act.
Particulars
(a) The proposed development is not quantitively different in any material sense from the originally approved development.
(b) The proposed development is not qualitatively different in any material sense from the originally approved development.
(c) The proposed development is essentially or materially the same as the originally approved development.
(d) The originally approved development is subject to condition 1.1 of Part 1 of the development consent (as per extract at paragraph 2(e)). This provision is a condition under section 4.17(4) of the EP&A Act, being a condition that nominates:
(i) an express outcome or objective that the development or a specified part or aspect of the development must achieve; and
(ii) clear criteria against which achievement of the outcome or objective must be assessed.
(e) A condition under section 4.17(4) allows an initial level of uncertainty and lack of finality. The provision allows a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the proponent.
(f) Condition 1.1 of Part 1 of the development consent expressly allows for (and expects) changes to the road layout, architectural plans, subdivision plans and engineering concept plans as a consequence to the changes in road layout and associated levels.
(g) As a result, the material and essential features of the originally approved development do not include the lot configuration, engineering details and building layout that results from the approved drawings and the operational conditions of the consent.
(h) A modification to the lot configuration, engineering details and building layout that reasonably arises from the changes in road layout and associated levels cannot constitute a change to a material and essential feature of the originally approved development.
(i) The note in condition 1.1 of Part 1 also expressly envisages that lot configuration and building layout may be modified by 'Section 96' (section 4.55) application.
(j) The consequences of the proposed modification, such as the environmental impacts of carrying out the modified development compared to the originally approved development, are not sufficient to cause the development to fail the 'substantially the same' test."
The parties agree that the Court has the power to impose conditions on the proposed modified development in the manner in which they have agreed for the reasons set out in the Applicant's written submissions on the power to change the proposed modified development by condition dated 9 December 2021 as follows:
1. The matters arising under section 4.15(1) of the EPA Act must be considered under section 4.55(3). There is an implied power (as per 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 ("1643 Pittwater Road") and AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 ("AQC Dartbrook Management")) to impose or modify conditions in response (being a power that corresponds to the power under s 4.17(1)(a) of the EPA Act).
2. The power to condition an approval is implied in the case of the power under s 4.55 of the EPA Act to modify a development consent: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; at 440-441; 1643 Pittwater Road at [41]; AQC Dartbrook Management (at [276]).
3. The proposed development agreed by the parties is able to be made by the Court via condition.
4. Scarf v Shoalhaven City Council [2021] NSWLEC 128 Pain J held (at [55]) that the Court does not have the power to agree to the amendment of a modification application under cl 121B of the Environmental Planning and Assessment Regulation 2000 (the Regulation) where:
1. a decision by the consent authority has been made; and
2. at the time that the decision was made the power under cl 121B was not available to the consent authority.
1. The modification application in the present case was the subject of an actual refusal on 24 September 2020.
2. Clause 121B of the Regulation came into force on 14 July 2021.
3. As a result, the Court has no power to agree to amend the application under cl 121B: AQC Dartbrook Management at [266].
4. The Applicant submits that the necessary changes to the Proposed Modification that are now proposed to be agreed between the parties in the section 34 conciliation conference process have arisen from consideration of matters referred to in s 4.15(1) of the EPA Act. In particular:
1. The deletion of top floor units to remove the perception of a fifth level is:
1. in response to the controls in cl 4.3 of Appendix 6 of the State Environmental Planning Policy (Sydney Growth Centres) 2006; and
2. to limit impacts of the proposed development on the locality.
1. The inclusion of additional privacy treatments to windows are to:
1. address the design quality principles in Sch 1 of State Environmental Planning Policy No 65 - Design of Quality of Residential Apartment Development (SEPP 65), Parts 2F, 3D and 3F of the Apartment Design Guide (which is incorporated into SEPP 65); and
2. the likely impacts of the proposed development.
1. Communal open space is increased in response to:
1. the controls in the Blacktown City Council Growth Centre Precincts Development Control Plan 2010; and
2. the likely social and amenity impacts of the proposed development.
1. Access from Schofields Road has been moved from the south-east of the site to the south-west of the site:
1. in response to the likely impacts of the proposed development; and
2. to ensure the site is suitable for the proposed development.
1. Stormwater management measures have been adjusted:
1. in response to the controls in Part J of the Blacktown Development Control Plan 2015; and
2. to address the likely impact of the proposed development on the natural and built environment.
The parties agree that the notification requirements set out in s 4.55(2)(c) of the EPA Act have been met, as detailed at paragraph 33 of the Respondent's Statement of Facts and Contentions filed 3 September 2021 as follows:
"Details of advertisement of the Modification Application
33. The Modification Application was notified from 12 to 26 September 2018. At the completion of the notification period, one (1) submission was received by the Respondent in response to the exhibition."
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties.
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.
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Orders
The Court orders:
1. the appeal is upheld;
2. modification application MOD-18-00331 to modify development consent JRPP-15-0273 is approved;
3. development consent JRPP-15-0273 is modified in the terms in Annexure A to this Judgment;
4. As a consequence of order 2(c), development consent JRPP-15-0273 is subject to the consolidated modified conditions set out in Annexure B to this Judgment.
The Court notes that the Respondent is to register these orders on the NSW Planning Portal within 14 days from the date of these orders
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Commissioner of the Court
Annexure A Conditions (424315, pdf)
Annexure B Conditions (812832, pdf)
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Decision last updated: 08 February 2022