Universal Property Group Pty Ltd v Liverpool City Council

Land and Environment Court (NSW)|2023-12-21

The Applicant was granted leave on 31 January 2024 to file the Amended Modification Application.

Orders:

The Court orders: 1. The appeal is upheld. 2. Development Consent No. DA-33/2021 is modified in the terms in Annexure A. 3. Development Consent No. DA-33/2021 as modified by the Court is contained in Annexure B.

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: 06 February 2024

As set out below, all pre-conditions arising under s 4.55(2) of the EPA Act have been met, and I am satisfied that the Court is able to rely on s 4.55(2) of the EPA Act in upholding the appeal.
The text of s 4.55(2)(a) requires that the Court, as consent authority, be 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). This comparison between the two developments may be done as a quantitative and qualitative assessment and may include an assessment of the impacts.
Though the manner in which judicial decisions have interpreted the test in s4.55(2)(a) of the EPA Act may guide the meaning of the provision, they are not a substitute for the text of the legislation. The test remains as stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85) at [18]- [19]).
The comparison exercise was undertaken by the parties and is included below starting with the quantitative comparison.
The quantitative changes are summarised in the supplementary Statement of Environmental Effects prepared by the Bathla Group, and drawings MP302-MP305 (Revision 3) dated 15 December 2023. The overall road location, layout and widths proposed in the Proposed Modification are consistent with the Original Approval. The Proposed Modification seeks approval to delete the Stage 3 Road which would involve additional works being carried out on the riparian land to the east. Further, the connection of Road 1, which was shown on the Original Approval - adjoining land owned by Transport for NSW, is now proposed to be deleted under the Proposed Modification in response Transport for New South Wales (TfNSW)'s submission.
The overall massing of the proposed development remains substantially the same. The Proposed Modification now seeks to modify the Original Approval to facilitate additional massing and height within the overall floor space controls. A comparison of the approved and proposed height and gross floor area within the eight blocks is as follows:

A comparison of the height of the proposed buildings and the GFA is also shown on drawings MP304 and MP 305.
The location and size of the communal open spaces areas is substantially the same as those areas approved under the Original Approval. The Proposed Modification retains the communal open spaces on the ground floor and demonstrates that compliance with the Apartment Design Guide can be achieved.
The qualitative changes comparison is summarised below as follows:

(1) The Proposed Modification will not radically alter or transform the external form or appearance of the Original Approval, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views and visual bulk.

(2) The Proposed Modification primarily relate to changes to the approved road pattern in response to reducing impacts on the adjoining riparian land and the commuter car park owned by TAHE. The road layout changes has in turn introduced a variation to the heights and built form of some of the proposed buildings.

(3) The Original Approval, as modified by the Proposed Modification, will continue to provide for an enhanced urban design outcome by increasing visual interest through a varied built form and by allowing height to be distributed across the site to maintain a human scale at the street level and minimise overshadowing of apartments and open space.

The Proposed Modification does not result in a radical transformation of the approved buildings envelopes or road layout. Although there is an increase in GFA and height to some of the proposed buildings, this increase does not cause any significant adverse amenity impacts upon the adjoining properties. The essence of the development remains the same. The Respondent agrees that the development as proposed in the Amended MA is substantially the same as the development for which consent was originally granted.
Based on the above, the Court 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.
Section 4.55(2)(b) of the EPA Act relates to consultation with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of approval proposed to be granted by the approval body. The following concurrences were issued by external agencies in relation to the Consent. Where applicable, any updated response from those agencies is detailed below in respect to the Proposed Modification:

(1) Heritage NSW. Referral back to Heritage NSW was considered unnecessary by the Respondent as the amendments to the Proposed Modification will not result in any changes to the impact on Aboriginal cultural heritage as already assessed, and no variation of the conditions issued by Heritage NSW is sought.

(2) Office of Water. The Amended MA was not referred to Water NSW as the amendments do not significantly change the proposed development ore result in additional works or results in additional works or activities:

(i) in the bed of any river, lake, or estuary,

(ii) on the banks of any river, lake or estuary,

(iii) on the land within 40m of the high bank of a river, lake or estuary, or,

(iv) any excavation which interest with an aquifer.

(3) NSW Rural Fire Service (RFS). The amended Proposed Modification has been referred to the RFS and the RFS has issued a revised fire safety authority pursuant to s 100B of the Rural Fires Act 1997 and General Terms of Approval.

(4) TfNSW. The Proposed Modification was referred to TfNSW. TfNSW has provided two additional conditions to be imposed on the any modified DA confirming that no works are permitted on TAHE's land.

(5) Sydney Trains. The Modification Application was referred to Sydney Trains who has confirmed that Sydney Trains has no objection to the proposed MA provided that the proposed deletion of the stage 3 road will not cause any adverse drainage impacts on the adjacent rail corridor which is to be addressed at further DA stages.

Section 4.55(2)(d) of the EPA Act requires consideration of submissions. The Proposed Modification was publicly notified in accordance with s 7.4 of the Liverpool Community Participation Plan 2022, from 15 November 2023 to 29 November 2023. One submission was received by Transport Asset Holding Entity. That submission has been considered by the parties and amendments were made to the Proposed Modification to address the concerns raised.
The parties have taken into consideration such of the matters referred to in section 4.15(1) of the EPA Act as are of relevance to the development the subject of the application and have also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified, both of which are required pursuant to s 4.55(3) of the EPA Act.
The parties note, and I agree, that the majority of the planning controls are expressed in relation to the granting of development whereas s 4.55(4) of the EPA Act expressly provides that:

The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

It is relevant to note that the modification power contained in s 4.55 of the EPA Act is a stand-alone power (Lido Real Estate Pty Ltd v Woollahra Council (1997) 98 LGERA 1 at 4 per Talbot J, North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 480-481 per Mason P - cited in 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council Doering v Pittwater Council 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [52] and Gann v Sutherland Shire Council [2008] NSWLEC 157 at [8]-[18] per Lloyd J).
Accordingly, where statutory controls are expressed as requiring the Court to have regard to a matter or take into consideration a matter prior to the granting of consent, that obligation is not mandatory as s 4.55(4) of the EPA Act makes it clear that the modification of a development consent is not the granting of development consent. The same applies with respect to development standards. As the modification power is a standalone power, cl 4.6 of the Liverpool Local Environmental Plan 2008 does not apply and a cl 4.6 written request to vary a development standard is not required (See Pepper J at [31] to [35] of SDHA Pty Ltd -v- Waverley Council [2015] NSWLEC 65).
In accordance with s 4.55(3) of the EPA Act, the matters referred to in s 4.15(1) that are of relevance to the modified aspects of the development have been considered by the parties in reaching agreement. The reasons for the grant of the Consent have been considered by the Respondent and the parties agree that the Proposed Development is consistent with those reasons and does not detract from them. The following reasons are stated in the assessment report of the Consent:

"• The subject Development Application has been assessed having regard to the matters of consideration pursuant to Sections 4.15, 4.22 and 4.23 of the Environmental Planning and Assessment Act 1979 and is considered satisfactory.

• The concept proposal is consistent with the intended desired future character of the area.

• The proposal is consistent with the objectives of the B4 - Mixed Use zone that is applicable to the site under the SEPP (Precincts - Western Parkland City) 2021.

• The proposal has undergone an extensive design review process and has satisfied the applicable objectives and provisions of SEPP (Precincts - Western Parkland City) 2021 including the provisions of Clause 28 regarding variations to development standards and 36 regarding development control plans."

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 I have set out in this judgment.
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.
The Court notes that the Respondent, as the relevant consent authority, has approved to (pursuant to s 113 of the Environment Planning and Assessment Regulation 2021) the Applicant amending Modification Application No. DA-33/2021/A to rely upon the following amended plans and documents (Amended Modification Application), as filed with the Court:

Proposed Amended Subdivision with Amended Masterplan

Overlaid Proposed Masterplan on Proposed Subdivision with Approved Masterplan Footprint

Court Approved Subdivision with Approved Masterplan

Current Proposed Subdivision with Approved Masterplan

Bushfire Threat Assessment - Request for Further Information response letter

Streamlined Biodiversity Development Assessment Report

The Applicant was granted leave on 31 January 2024 to file the Amended Modification Application.

(1) The appeal is upheld.

(2) Development Consent No. DA-33/2021 is modified in the terms in Annexure A.

(3) Development Consent No. DA-33/2021 as modified by the Court is contained in Annexure B.

Environment Planning and Assessment Regulation 2021

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

Judgment

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 refusal of Modification Application No DA-33/2021/A, under s 4.55(1A) of the EPA Act, which seeks to modify Development Consent DA-33/2021 approved by Regional Planning Panel on 20 September 2022. Such modification being to delete the road within the north-east corner of the Site and realign the road in the north-eastern corner of the Site (the Proposed Modification) at 164-170 Croatia Avenue, Edmondson Park legally described as Lots 25 and 26 in Deposited Plan 228850 (the Site).
The approved development, DA-33/2021, (the Consent) is for a concept development for mixed use development comprising residential flat buildings, retail/commercial floor space and supporting roads and infrastructure. The Consent was nominated and approved as a concept development application in accordance with s 4.22(3) of the EPA Act. Subsection 4.24(2) of the EPA Act requires that further development applications cannot be inconsistent with the Consent. Section 4.24(3) of the EPA Act expressly contemplates the modification of consents granted to a concept development application.
Since approval of the Consent, several development applications have been lodged for the Site, including: 1. DA-458/2022 which was lodged on 14 April 2022 and approved via Land and Environment Court proceedings on 25 July 2023 for the proposed subdivision of land into four super lots including construction of public roads, stormwater drainage and associated site works. 2. DA-1099/2022 which was lodged on 14 April 2022 for the demolition of existing structures and construction of a mixed-use development comprising 598 apartments, 1289.90m2 of retail space, basement parking accommodating 926 car parking spaces, landscaping and associated structures over four Stages. This application is currently subject to a Class 1 appeal, proceedings 2023/130765.
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 30 October, 23 November, 8, 15 and 21 December 2023, 19, 23, 24 and 31 January 2024. I 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 modification of 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification of a consent.
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 explained how the jurisdictional prerequisites have been satisfied in an agreed statement of jurisdictional prerequisites.
The Proposed Modification was made by the Applicant on 23 June 2023 with the written consent of Raj and Jai 10 Pty Ltd, the owner of the Site.
The Proposed Modification was made under s 4.55(1A) of the EPA Act which relates to modifications involving minimal environmental impact. A modification application of this type requires the consent authority to be satisfied that the proposed modification is of minimal environmental impacts; that the development to which the consent as modified relates and is substantially the same development as the development for which the consent was originally granted; is notified in accordance with the EPA Regulation or a DCP; and the consent authority has considered any submission made concerned the proposed modification.
The Proposed Modification seeks changes to the Concept Development, which does not approve the carrying out of any actual works. To the extent that the consent authority has any doubt that the ultimate outcome of the Proposed Modification will result in more than minimal environmental impact, an alternative source of power is available to assess the Proposed Modification pursuant to s 4.55(2) of the EPA Act provided that any pre-conditions to the excise of that alternative power have been fulfilled. Clay AC in Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204 at para 34-35 states as follows: "It is the case that, in my opinion, although a modification application is made under s 4.55(1A) of the EP&A Act, if it transpires that there is more than minimal environmental impact, the Court can exercise the power under s 4.55(2) of the EP&A Act if on the merits it is appropriate to do so. It is important though, that the alternate source of power is only available if any pre-conditions to the exercise of that alternate source of power have been fulfilled. In this case there is no issue that the necessary pre-conditions have been satisfied. The modification application was exhibited in accordance with the Council's DCP and any necessary consultation with concurrence bodies was conducted. Accordingly, assuming the impact is more than minimal, but the modification would otherwise have been acceptable, the Court could exercise the power under s 4.55(2) of the EP&A Act to grant the application. (See McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125 at [114] to [116] citing Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31; [1996] NSWCA 365 at 85 - 86.)"
The preconditions set out in s 4.55(2) of the EPA Act are the same as those in s 4.55(1A) of the EPA Act, with the additional requirement at s 4.55(2)(b) that the consent authority consult: ...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…
As set out below, all pre-conditions arising under s 4.55(2) of the EPA Act have been met, and I am satisfied that the Court is able to rely on s 4.55(2) of the EPA Act in upholding the appeal.
The text of s 4.55(2)(a) requires that the Court, as consent authority, be 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). This comparison between the two developments may be done as a quantitative and qualitative assessment and may include an assessment of the impacts.
Though the manner in which judicial decisions have interpreted the test in s4.55(2)(a) of the EPA Act may guide the meaning of the provision, they are not a substitute for the text of the legislation. The test remains as stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85) at [18]-[19]).
The comparison exercise was undertaken by the parties and is included below starting with the quantitative comparison.
The quantitative changes are summarised in the supplementary Statement of Environmental Effects prepared by the Bathla Group, and drawings MP302-MP305 (Revision 3) dated 15 December 2023. The overall road location, layout and widths proposed in the Proposed Modification are consistent with the Original Approval. The Proposed Modification seeks approval to delete the Stage 3 Road which would involve additional works being carried out on the riparian land to the east. Further, the connection of Road 1, which was shown on the Original Approval - adjoining land owned by Transport for NSW, is now proposed to be deleted under the Proposed Modification in response Transport for New South Wales (TfNSW)'s submission.
The overall massing of the proposed development remains substantially the same. The Proposed Modification now seeks to modify the Original Approval to facilitate additional massing and height within the overall floor space controls. A comparison of the approved and proposed height and gross floor area within the eight blocks is as follows: Height Concept Plan Proposed Amendments Block A 4,6,7 & 8 9 Block B 4,6,7 & 8 9 Block C 4,6,7 & 8 10 Block D 4,6,7 & 8 10 Block E 4,6,7 & 8 8 Block F 4,6,7 & 8 10 Block G 4, 7 and 8 11, 3 & 12 Block H 4 & 6 11

A comparison of the height of the proposed buildings and the GFA is also shown on drawings MP304 and MP 305.
The location and size of the communal open spaces areas is substantially the same as those areas approved under the Original Approval. The Proposed Modification retains the communal open spaces on the ground floor and demonstrates that compliance with the Apartment Design Guide can be achieved.
The qualitative changes comparison is summarised below as follows: 1. The Proposed Modification will not radically alter or transform the external form or appearance of the Original Approval, or its physical relationship with surrounding properties in terms of the key considerations of overshadowing, privacy, views and visual bulk. 2. The Proposed Modification primarily relate to changes to the approved road pattern in response to reducing impacts on the adjoining riparian land and the commuter car park owned by TAHE. The road layout changes has in turn introduced a variation to the heights and built form of some of the proposed buildings. 3. The Original Approval, as modified by the Proposed Modification, will continue to provide for an enhanced urban design outcome by increasing visual interest through a varied built form and by allowing height to be distributed across the site to maintain a human scale at the street level and minimise overshadowing of apartments and open space.
The Proposed Modification does not result in a radical transformation of the approved buildings envelopes or road layout. Although there is an increase in GFA and height to some of the proposed buildings, this increase does not cause any significant adverse amenity impacts upon the adjoining properties. The essence of the development remains the same. The Respondent agrees that the development as proposed in the Amended MA is substantially the same as the development for which consent was originally granted.
Based on the above, the Court 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.
Section 4.55(2)(b) of the EPA Act relates to consultation with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of approval proposed to be granted by the approval body. The following concurrences were issued by external agencies in relation to the Consent. Where applicable, any updated response from those agencies is detailed below in respect to the Proposed Modification: 1. Heritage NSW. Referral back to Heritage NSW was considered unnecessary by the Respondent as the amendments to the Proposed Modification will not result in any changes to the impact on Aboriginal cultural heritage as already assessed, and no variation of the conditions issued by Heritage NSW is sought. 2. Office of Water. The Amended MA was not referred to Water NSW as the amendments do not significantly change the proposed development ore result in additional works or results in additional works or activities: 1. in the bed of any river, lake, or estuary, 2. on the banks of any river, lake or estuary, 3. on the land within 40m of the high bank of a river, lake or estuary, or, 4. any excavation which interest with an aquifer. 1. NSW Rural Fire Service (RFS). The amended Proposed Modification has been referred to the RFS and the RFS has issued a revised fire safety authority pursuant to s 100B of the Rural Fires Act 1997 and General Terms of Approval. 2. TfNSW. The Proposed Modification was referred to TfNSW. TfNSW has provided two additional conditions to be imposed on the any modified DA confirming that no works are permitted on TAHE's land. 3. Sydney Trains. The Modification Application was referred to Sydney Trains who has confirmed that Sydney Trains has no objection to the proposed MA provided that the proposed deletion of the stage 3 road will not cause any adverse drainage impacts on the adjacent rail corridor which is to be addressed at further DA stages.

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Judgment (23 paragraphs)

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