Tier Architects Pty Ltd v Burwood Council

Background

1. A Notice of Motion was filed to the Court on 8 August 2023 and sought leave to rely on amended plans and reports. Leave was granted by the Court on 16 August 2023. The changes to the modification application (modification application) are as follows:

• Amended architectural plans, Revision E (Ex A), which were annexed to the urban design joint expert report (UD JER) and town planning joint expert report (planning JER);
• Additional architectural plan, drawing 813, detailing the kitchen layouts as sought by the town planners within the planning JER;
• Amended landscape plan revision K (Ex B), which was annexed to the UD JER and considered in the planning JER;
• Tree report prepared by Jacksons Nature Works, dated 30 January 2023 (Ex C), annexed to the planning JER;
• As a result of the changes, the proposed gross floor area has increased from the proposed 3,282m2 to 3,301m2;
• Amendment of three of the boarding rooms from a double room to a single room with associated further setback to Cooper Street, now proposed at approximately 9.922m to the balcony/private open space area. Relevantly, these rooms are located to the east of the heritage item. The proposed setback of the eastern building ranges from 9.922m - 6m.
• Removal of a ground floor boarding room to maintain a pedestrian access pathway between Cowdery Lane the subject site. Increased indent setback along Cowdery Lane to the boarding room above the pedestrian access pathway through deletion of the balcony on each level (the approved pathway was open to the sky).

1. During the hearing, the modification of conditions 30-41 relating to the WaterNSW approval were removed from the proposal.

The Site and Locality

1. As detailed within the SOFAC, the subject site comprises 2, 2A and 4 Cooper Street, Strathfield and is legally known as Lots 22, 23 and 24 in DP 2089, Lot 1 in DP 455342, Lot 1 in DP 3200999 (site).
2. The site has a combined area of 3,045m2 with a frontage of 60.964m to Cooper Street. The site is generally rectangular in shape with a depth between 48.06m - 53.09m metres and a rear boundary frontage to Cowdery Lane of 60.33m. An aerial photograph is reproduced from the SOFAC (Ex 1) below:
3. The site is zoned R1 General Residential pursuant to the Burwood Local Environmental Plan 2012 (BLEP). The properties on the northern side of Cooper Street are zoned R2 Low Density Residential.
4. The site contains a heritage item (2 Cooper Street) and draft LEP heritage item at the time of the hearing (4 Cooper Street) and two heritage items to the east (an electricity substation and 45 Wentworth Road). Opposite the site to the north / north west is the Philip Street Heritage Conservation Area (HCA).
5. Development within the area is generally characterised as one-two storey dwellings in a landscaped setting, with some mix of uses such as multi dwellings. The area of Cooper Street on the southern side somewhat changes character, noting the R1 zoning and increased height and Floor Space Ratio (FSR) provisions allowable in this section. To the rear of the subject site is Strathfield Private Hospital, a three storey building.

The onsite view

1. The first day of the hearing commenced on-site, where the Court's attention was drawn to the heritage building on the site, landscaped areas, views of the heritage buildings and a streetscape observation.

Modification of a Court consent

1. Tier filed the modification application directly to the Court pursuant to s 4.55(8) of the EPA Act, which states as follows: 4.55 Modification of consents - generally (cf previous s 96) … (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
2. Section 4.55(8) allows the Court to modify a consent granted by it, as is the case here. Section 4.55(2)(a) and (3) are the relevant provisions for consideration by the Court. Subsections 4.55(2)(b) and (c) are to be exercised by the consent authority.
3. In considering a modification application, s 4.55 (2)(a) requires that the modified development is substantially the same development as the development as originally granted. I note that there is no disagreement between the parties that the proposed modifications satisfy s 4.55(2)(a).
4. The relevant provisions of s 4.55(2) and (3) state as follows: 4.55 Modification of consents - generally (cf previous s 96) … (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the 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 consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (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 (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) 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.
5. I will deal with the provisions after relevantly considering the issues in dispute.

Issues In Dispute

1. On the basis of agreement within the urban design joint expert report and town planning joint expert report, it was agreed by the parties that contentions 2, 3, 4, 5, 6 are substantially resolved. I note that the heritage evidence revolved around unresolved contention 1 heritage conservation and, with respect to heritage impacts, consideration of contentions 2, 4, 5, and contention 7.

Heritage Impacts

1. The Respondent says that the modification application should be refused as the proposed modifications will have a detrimental impact on the heritage significance of the heritage items on and near the subject site being:

• 2 Cooper Street Strathfield, a BLEP heritage item on the subject site;
• 45 Wentworth Street Strathfield, a BLEP heritage item in the vicinity of the subject site;
• 4 Cooper Street Strathfield, a draft BLEP heritage item at the time of the hearing on the subject site;
• 2B Cooper Street, Strathfield (Ausgrid substation), a state listed s170 heritage item and draft BLEP heritage item at the time of the hearing that adjoins the subject site; and
• The Philips Street Heritage Conservation Area, a BLEP heritage conservation area near the subject site.

1. The Council says that the proposed reduced front setback down to 6m will impede views to and from the public domain of 2 Cooper Street and overbear the heritage listed substation. Further, that the proposed decreased building separation to the rear of 2 Cooper Street from 6m to 4m will not retain the garden setting of the heritage item. The Council says that the proposed changes would render the development incompatible with the heritage character of the area.
2. The following planning controls are relevant from the BLEP: 5.10 Heritage conservation … (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). …. 6.6 Development on land at Cooper Street, Strathfield (1) The objective of this clause is to protect the character of Cooper Street, Strathfield, including buildings of heritage significance. (2) This clause applies to the following land at Cooper Street, Strathfield - (a) Lot 1, DP 320999, (b) Lots 15-17 and 21-24, DP 2089, (c) Lot 1, DP 455342, (d) Lot 1, DP 1040940, (e) Lot 1, DP 911709, (f) Lot 1, DP 925133, (g) Lot 1, DP 339188, (h) Lots 1 and 2, DP 229007. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that - (a) there will be a minimum 6 metre setback from the frontage of Cooper Street, Strathfield, and (b) there will be a minimum 3 metre setback from the frontage of Cowdery Lane, Strathfield, and (c) the maximum height of any building within a 16 metre setback of the frontage of Cooper Street, Strathfield will not exceed 11 metres.
3. The following planning controls are relevant from the Burwood Development Control Plan 2012 (BDCP): "3.7 Area Based Controls - Cooper Street Precinct, Strathfield …. Overview … Where provisions are duplicated in other parts of this DCP, the following provisions take precedence when applied to the subject Precinct. … Setbacks Objectives O1 To ensure the street setback enhances the setting of the building, and that side and rear setbacks create usable land and maintain amenity between neighbouring sites. O2 To ensure that the built form improves the landscape character, encourages landscape screening and contributes to the landscape softening of Cooper Street, Cowdery Lane and areas adjacent to common boundaries. O3 To ensure deep soil areas contribute to the provision of mature planting and water filtration to all setbacks. O4 To ensure adequate separation distances to protect the curtilage and buildings of heritage items. … Side Setbacks and Separation Distances … P4 The minimum separation distance to all facades of a heritage item within the same site or an amalgamated site is 6m"
4. Section 4.7 Heritage in Residential Precincts of the BDCP applies. I note that the precinct specific DCP for the subject site at Section 3.7 stipulates that it takes precedence over other parts of the BDCP.
5. Section 5.4 Boarding Houses of the BDCP also contain relevant heritage related provisions at P1, P2 and P3.
6. Clause 30A of State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH) relevantly states the following: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.
7. Expert evidence on the heritage contentions was submitted in a joint expert report by James Phillips for Tier and Brian McDonald for Council (Ex 3) (Heritage JER). Oral evidence by the heritage experts was provided during the hearing.

Building Separation

1. The proposed modifications include a reduction in building separation from 6m to 4-4.3m to the south and west of 2 Cooper Street and the new building. There is a small portion that reduces to 3m.
2. Mr McDonald says that the proposed reduction in building separation contravenes the 6m requirement under Section 3.7 of the BDCP. He says that the reduced separation to 4m, when considered with the dominant 3-4 storey building at the rear, is unacceptable because:

• Designing development within a heritage context should not be driven by numbers and instead, by the setting of the heritage item and how that might be impacted;
• 2 Cooper Street is a heritage house which should have an appropriate setting through a back garden. The zoning and density changes to the planning controls are incongruent with the heritage significance of the heritage item. Therefore, the building separation requirements under Section 3.7 of the BDCP should be met, if not exceeded;
• The 6m building separation in the original approval was already a compromise. The rear garden area is an important element of the heritage setting of 2 Cooper Street;
• The three to four storey rear building will further envelope and dominate 2 Cooper Street as a result of the decreased building separation. The rear building will form an overpowering backdrop when viewed from the public domain and within the site. The proposed building separation will have an adverse impact on the setting of the house;
• The sightline diagrams show a portion of the impact (Ex A, Dwg 804). Depending on the location, part of the proposed modifications to the new building will be perceived over the ridge line of 2 Cooper Street from the public domain.

1. The Council submits:

• The proposed building separation is generally 4m, narrowing to 3m at the entry point;
• Tier has not made an analysis of the heritage curtilage and what comprises the curtilage. It is unclear if the heritage expert considers that the modifications will have no impact or, little impact. Pertinently, the Heritage Impact Statement prepared by Mr Phillips dated 15 September 2021 (HIS) does not grapple with the non-compliance with Section 3.7, control P4, of the BDCP and its objectives;
• There has been no justification provided for why the control should be departed from and the objective of protecting the curtilage of the heritage item should be given significant weight.

1. Mr Phillips says that the proposed reduced building separation between 2 Cooper Street and the new building has limited to no impact and would not compromise the heritage significance of the heritage item's setting because:

• In the context of metropolitan Sydney, new buildings are quite close to heritage buildings. This building has found an adaptive reuse as recreational facilities for a boarding house;
• The garden setting refers to the garden and landscaped areas to the front and east of 2 Cooper Street. The rear of the heritage item has less heritage value given the previous alterations and approved alterations as part of this development;
• The reduced building separation occurs to the rear and west of the heritage item. The proposed separation provides sufficient area for the retention of the traditional curtilage;
• The approved scale, height, proportion and setbacks reflect the existing heritage item and surrounding development. The proposed changes are negligible and maintain heritage compatibility with 2 Cooper Street;
• The architectural expression of the rear building provides a neutral and recessive backdrop to the heritage item, incorporating face brickwork and simple detailing;
• Consideration should be given to the proposal including retention and maintenance of two heritage properties (one a draft item) and their significance, including restoration of the heritage item which will be visible from the public domain.

1. Tier submits:

• Through the sightline diagrams in Ex A, Drawing 804 of the architectural plans, the decreased building separation is shown as having no impact when viewed from the public domain;
• The statement of significance, incorporated into the HIS, describes elements about the building that are read from the front and the streetscape;
• The rear of the building can still be seen in the round as considered and described in the original decision, and is not an element specifically identified in the statement of significance;
• The planning proposal which informed the controls did not anticipate a 6m separation at the rear of the heritage item, but instead a building abutting 2 Cooper Street to the rear;
• The position of the house is central within the site. The rear garage is to be demolished and the rear of the site does not depict a garden setting;
• Section 4.15(3A) of the EPA Act requires flexibility to be provided where an alternative solution demonstrates that the objectives of a Development Control Plan provision are met. The objectives of Section 3.7, control P4 of the BDCP are met as:
• There is adequate amenity provided, as agreed through the town planners' evidence,
• Deep soil is provided in the setbacks; and
• Based on the statement of significance for 2 Cooper Street, the greatest heritage significance is not from the rear but from the street frontage and its sides.

The Front Setback

1. The modification application proposes to locate the new eastern building closer to Cooper Street, with a front setback ranging from 9.9m - 6m. The approved setback ranges from 11.5m-9.9m.
2. Mr McDonald says with respect to the front setback:

• The front setback control of 6m is the minimum. When analysing the site and determining the placement of buildings, the visual catchment of the heritage item needs to be considered. The common practice is to not place new buildings further forward than the heritage item. In this instance, the front alignment of 2 Cooper Street and visual impacts should determine the minimum front alignment of new development;
• View lines of the proposal should not be numerically driven, including consideration of the 6m minimum front setback and 45 degree heritage sightline diagram considered in the planning proposal. The visual catchment and building placement is determined through the site analysis;
• The current approval established a satisfactory relationship between the new development and 2 Cooper Street, which was located in line and behind the heritage item. The proposed modifications pushing the eastern building in front of 2 Cooper Street are unacceptable and block views of 2 Cooper Street;
• Concerns in relation to the substation were not pressed.

1. The Council submits:

• The north-western corner of the building is proposed to come forward by 3.8m, which is perceptible as demonstrated in the view corridor analysis undertaken by the heritage experts (Ex 7);
• The 45 degree sightlines to and from the heritage item along the side elevation (including the bay window) are impacted by the proposed front setback. The impact from the proposed setback also amounts to a loss of up to 13 degrees difference when viewing the important historical elements of the front and side of 2 Cooper Street;
• It is the impacts from the proposed front setback on the heritage significance of the building and not the 6m front setback controls that would warrant refusal.

1. Mr Phillips says with respect to the front setback:

• The proposed front setback and retained eastern separation create a visual and landscaped curtilage so that the heritage item can be read from the streetscape. The reduced front setback in addition to the eastern building setback provides an adequate garden setting and landscaped setting to 2 Cooper Street and its heritage significance.
• The reduced setback has no impact on the HCA, with visibility obscured by the dense mature street trees and the street;
• The modifications will have no impact on the ability to read the heritage significance of 2 Cooper Street;
• The substation remains fully legible from the public domain, which are typically located next to buildings of all types and sizes and its heritage significance is attributed to its architecture.

1. Tier submits:

• Clause 6.6 of BLEP was introduced through a site specific planning proposal for the block, which included detailed consideration of the heritage items and HCA. The proposed modifications to the front setback meet or exceed the 6m requirement of cl 6.6 of BLEP;
• The BLEP and BDCP provisions were prepared with an understanding of the heritage significance of 2 Cooper Street and are not generic controls prepared without knowledge of those elements;
• The loss of views of the heritage item maintains the 45 degree angle explored in the planning proposal to the front. In any event, the experts agree that the view impacts are for only 5m across the 60m frontage.

Character

1. Clause 30A of SEPP ARH requires consideration of whether the proposed design of a development is compatible with the character of the local area. Similarly, Section 5.4 of the BDCP contains objectives and controls for proposed development to be compatible with surrounding development when viewed from public streets and adjoining sites. The controls also require development to reflect a sympathetic design with consideration of the heritage significance of a property.
2. Through the joint expert report conferencing, the urban design experts and town planning experts were in agreement that the modifications to the proposed development will be compatible with the existing and desired future character of the local area from an urban design and town planning perspective.
3. The heritage experts considered the character of the proposed modifications throughout their evidence at [29] to [38].

Consideration and Findings

1. I accept the submissions from Tier that the planning controls applicable to the site are not generic and have been informed from a detailed consideration of the precinct and numerous heritage studies through the planning proposal process.
2. I relevantly note that the concept diagrams accompanying the planning proposal at the finalisation stage included building envelopes showing a 6m front setback, 3 storey built form directly abutting 2 Cooper Street, 3-4 storey built form at 4 Cooper Street and 45 degree sightlines to 2 Cooper Street from the public domain. Most of these supporting information considerations were ultimately realised through the BLEP and BDCP.
3. With respect to the building separation issue, I accept the evidence of Tier and find that the proposed building separation is acceptable because:

• The heritage inventory sheet, reproduced within the HIS, primarily refers to built form elements that are either facing the street, the roof form or along the side elevations, including the generic garden setting reference;
• Substantial garden settings within the front setback and large street tree canopies along Cooper Street were evident at the site viewing;
• 2 Cooper Street is situated in the middle of the site with a substantial front garden area. The configuration of the rear of the site with the existing garage, previous alterations and additions and consideration of the heritage inventory sheet focusing on the front elements indicate that the heritage significance is more prominent in the front and as viewed from the streetscape / public domain;
• I accept the evidence of Mr Phillips and submissions from Tier that the objectives of the BDCP controls (in particular Section 3.7, P4 of the BDCP) and provisions of cl 5.10 of the BLEP are met. I accept the oral evidence of Mr Phillips that the decreased 2m building separation to the south and west have minimal impact on the heritage setting as they are to the rear areas which are not the primary view corridors that demonstrate the heritage significance of 2 Cooper Street;
• I accept the evidence from the heritage experts and consideration of the sightlines drawing 804 (Ex A) that the decreased building separation will have a range of little to no impact as viewed from the street. I accept that it is the height of the planning controls and subsequent approved development that has established the primary massing impacts. I do not accept the evidence that it is the proposed modifications that would detrimentally diminish the heritage significance as viewed from the public domain;
• I consider that the 6m building separation maintained to the east of 2 Cooper Street and the front landscaped area maintains the important elements of the garden setting of the heritage item as seen from and to the public domain as set out in the heritage inventory extract in the HIS;
• I also consider that the heritage significance of views of 2 Cooper Street in the round, as considered within the original development application, are adequately maintained by the proposed building separation.

1. With respect to the front setback, I agree with the evidence of Mr McDonald that heritage sites require a sensitive design led approach that may differ from a numerical driven design.
2. However, I accept the evidence of Tier that views of the important heritage elements are substantially retained. Whilst the eastern building now projects further beyond 2 Cooper Street, it is still relatively behind or in line with the draft heritage item at 4 Cooper Street. The changes made to setback rooms G16, 123 and 223, which are closest to the heritage item and the front setback, also contribute to establishing an acceptable relationship with 2 Cooper Street.
3. The evidence submitted sought to retain a general 45 degree view line of the heritage item to and from the public domain as considered within the planning proposal concept diagram. It was agreed by the experts that this was a loss of approximately 5m of 45 degree views along of the heritage item to the side elevation bay window from the public domain. An approximate 13 degree loss of views occurs to the front corner of 2 Cooper Street, though a 45 degree view is maintained from the public domain. I note that the 45 degree sight view line did not ultimately become a planning control with the BLEP and BDCP for this site, but that it provides some guidance on the background of the controls and heritage impacts.
4. I accept Tier's evidence that the modifications comply with the numerical controls and that the impact to the heritage significance of 2 Cooper Street is minor. I accept that the development of the BLEP and BDCP front setback controls had considered the impacts on the heritage item at the time of making the control with the information accompanying the finalisation of the planning proposal. That information showed a concept diagram with a 'garden setback' of 6m in the location of the eastern building (Ex 1, folio 32). I accept that whilst there is an impact, it is a reasonable impact that maintains heritage views, an adequate curtilage of the heritage item and does not unreasonably impact on the setting of 2 Cooper Street.
5. I accept the evidence that impacts to the substation heritage item are limited, if not negligible, because the heritage item does not have a relationship with the heritage item at 2 Cooper Street, adequate sight lines are retained, and the existing fence line already provides a reduction in sight lines to the substation as perceived from the subject site.
6. With respect to character, having found that the proposed building separation and front setback do not unreasonably impact on the heritage significance of 2 Cooper Street, I find that the proposed modifications are consistent with the current and future character of the local area.
7. I find this on the basis, in summary, that the front setbacks are consistent with the BLEP and BDCP controls, the landscaping and garden setting elements are largely retained, the building separation meets the objectives of the controls, the heritage and draft heritage items will be adaptively reused, and built form continues to retain the heritage significance of 2 Cooper Street, the draft heritage item, the substation and the HCA in this instance.

Jurisdictional considerations

1. In finding that the issues pressed in relation to contentions 1, 2, 4, 5, and 7 have been overcome by the proposed modification application, I turn to the jurisdictional matters that must be satisfied.
2. In considering a modification application, s 4.55 (2)(a) of the EPA Act requires that the modified development is substantially the same development as the development as originally granted. As stated earlier, there is no disagreement between the parties that the proposed modifications satisfy s 4.55(2)(a).
3. Consistent with Preston CJ's decision in Arrage v Inner West Council [2019] NSWLEC 85 at [18]-[19], the relevant test of the provision is if the modified development is substantially the same development as the one which was originally approved.
4. Whilst referring to s 4.56 of the EPA Act, which is in similar terms to s 4.55, the Statement of Environmental Effects prepared by Planning Ingenuity dated 23 September 2022 (SEE) details how the modification application satisfies s 4.55(2)(a).
5. I accept the evidence within the SEE which relies on Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto) as a pathway to meet the test of s 4.55(2)(a) of the EPA Act. In considering the SEE and modification application, I am directly satisfied that the modified development is substantially the same as the development originally granted for the following reasons:

• The proposed additional gross floor area of 439m2 is relatively minor in the overall approved gross floor area of 2862m2 (totalling 3301m2);
• The additional gross floor area translates into a minor increase of three boarding rooms, from 75 rooms to 78 rooms;
• The proposal remains compliant with the height and FSR development standards;
• The changes to the setbacks and building separation proposed by the modified development do not change the essence of the development; and
• The changes to the front setback retain a landscaped front setback along Cooper Street that is consistent with the approved development and heritage streetscape.

1. In accordance with s 4.55(2)(b) of the EPA Act, WaterNSW did not object to the modification application and maintained their General Terms of Approval as issued on 3 May 2021 (Ex 2, folio 27).
2. In accordance with s 4.55(2)(c) of the EPA Act, the consent authority notified the modification application on 8 November 2022 for 14 days and no submissions were received (s 4.55(2)(d)) (Ex 1).
3. In accordance with s 4.55(3) of the EPA Act, I will now consider the first element in relation to the relevant matters in s 4.15(1).
4. The modification application was filed with owners consent.
5. The subject site is zoned R1 General Residential, and I have had regard to the objectives of the zone.
6. The modification application maintains compliance with the BLEP development standards for cl 4.3 Height of buildings, cl 4.4 Floor space ratio and cl 6.6 Development on land at Cooper Street, Strathfield. I have considered that the modification application meets the requirements of cl 5.10 Heritage conservation further above at [28] to [51].
7. On the basis of Schedule 7A of State Environmental Planning Policy (Housing) 2021 (Housing SEPP), I am satisfied that the Housing SEPP does not apply to the modification application and SEPP ARH applies instead.
8. With consideration of the SOFAC (Ex 1), SEE (Ex F), and architectural plans (Ex A), the modification application continues to comply with Division 3 of SEPP ARH. Satisfaction of the provisions of SEPP ARH was not in dispute between the parties, with the exception of cl 30A in relation to character of the local area. For the reasons I set out at [28] to [51], I consider that the provisions of cl 30A has been met.
9. The modification application continues to comply with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) in relation to contamination matters, as originally approved.
10. Based on my findings on the issues in dispute and consideration of the evidence regarding the site and suite of relevant planning controls, I find that the provisions of s 4.15(1)(b), (c) and (e) of the EPA Act are met. This is based on the findings of the reasonableness of the likely impacts from the proposed modifications, the suitability of the site to accommodate those modifications and that the modifications do not offend the public interest.
11. With respect to s 4.55(3) of the EPA Act, I must also take into consideration the reasons given for the grant of the original consent. I have considered O'Neill C judgment Tier Architects Pty Ltd v Burwood Council [2022] NSWLEC 1036 and the reasons given for grant of consent. I find that the modification application does not offend these reasons because:

• The heritage item and draft heritage items are retained and adequately visible from the streetscape;
• On the basis of my findings at [28] to [51], the modified built form is sited in a way that does not unreasonable impact on the heritage significance of the heritage items and draft heritage item. The modifications do not impact on the character of the HCA;
• The landscaped front setback, whilst modified, is maintained;
• The rear building separation, whilst modified, maintains views of the heritage item within the site; and
• The density transition and fourth storey element remain unchanged.

1. In relation to the modification of conditions of consent, at the end of the hearing I made directions for the parties to file agreed conditions of consent by 1 September 2023 or provide submissions on conditions in dispute. The parties filed agreed conditions of consent.

Conclusion

1. With consideration of the evidence before the Court, the contested issues and jurisdictional matters, I find that the modification application should be approved subject to the agreed upon conditions of consent.

Orders

1. The Court orders that: 1. The application is granted. 2. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, the application to modify Development Consent No DA 2021.1 at 2, 2A and 4 Cooper Street Strathfield is approved subject to the terms set out in Annexure A. 3. The terms of the consolidated Development Consent No DA 2021.1 are set out in Annexure B. 4. The exhibits are returned, except for A, F and 1.

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Annexure A Annexure B 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 2023