COMMISSIONER: On 6 August 2018, the Sydney Eastern City Planning Panel granted development consent No 124/2017 for the demolition and construction of a six to ten storey mixed use development comprising 124 apartments, one retail premises at the ground floor and three levels of basement car parking on land known as 68-72 Railway Parade and 2-10 Oxford Street, Burwood (the original consent).
The original consent has subsequently been modified on four previous occasions, most recently by consent granted by the Court on 20 June 2022 X‑Sealant Pty Ltd v Burwood Council [2022] NSWLEC 1316.
On 18 November 2022, the Applicant in these proceedings, X-Sealant Pty Ltd, lodged Modification Application No MOD.10.2017.124.5 seeking approval to reconfigure the 2 bedroom penthouse apartment and communal open space area above Level 6 to provide a 4-bedroom penthouse apartment as built on-site and remove the communal open space area (the modification application).
As the modification application was undetermined, the Applicant brought this Class 1 appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), by reference to s 4.56 of the EPA Act which deals with modification of consent granted by the Court. However, as the original consent was not granted by the Court, the Applicant amended the modification application to be an application under section 4.55(1A) of the EPA Act.
The Applicant filed a Notice of Motion with the Court on 7 July 2023 seeking to amend the modification application. The motion was unopposed by the Respondent, who advises that the amendments resolve the matters in dispute.
Accordingly, while the matter was initially listed before me for hearing 13-14 July 2023, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 13 July 2023. 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 modifying the consent in accordance with amended plans.
I granted an adjournment to permit the amended plans to be notified in accordance with the Burwood Development Control Plan 2013, which occurred between 27 July - 10 August 2023.
A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 16 August 2023.
The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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.
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.
Firstly, with respect to s 4.55(1A) of the EPA Act, I have formed the necessary state of satisfaction that the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted by the Sydney Eastern City Planning Panel on 6 August 2018. In arriving at this state of satisfaction I have considered the amended architectural plan titled 'Penthouse Floor Plan' (Revision F), and relevant elevations and sections prepared in support of the modification application alongside those prepared in support of the development the subject of the original consent. In quantitative terms, the modification application results in a development comprising 125 apartments, compared to the development the subject of the original consent for 124 apartments. Those plans depict development that is agreed between the parties to be substantially the same as the development for which the consent was originally granted, and before that consent as originally granted was modified.
Secondly, as noted at [8], the modification application was notified, in response to which no written submissions were received.
Thirdly, I have also taken into consideration those matters under s 4.15(1) of the EPA Act as they are relevant to the modification application. Those matters at s 4.15(1) of the EPA Act that are relevant to the modification application are as follows:
1. According to cl 4.3 of the Burwood Local Environmental Plan 2012 (BLEP), a height of building standard of 26m applies to the site and the modification application is within the height of building standard.
2. The floor space ratio (FSR) applicable to the site, at cl 4.4 of the BLEP is 3:1. The additional gross floor area (GFA) attributed to the 2-bedroom apartment results in an exceedance of the FSR. However, as shown in SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31], the provisions dealing with modification applications contained in the EPA Act are a complete source of power to modify a consent that breaches a development standard, and cl 4.6 of the BLEP does not apply to modification applications. I also note that the parties agree the additional GFA is minor and does not result in environmental impacts. For the same reason, I am also satisfied that the proposed modification is of minimal environmental impact, pursuant to s 4.55(1A)(a) of the EPA Act.
3. In accordance with s 100(3) of the Environmental Planning and Assessment Regulation 2021, BASIX Certificate No A502052, prepared by Eco Certificates and dated 10 July 2023, accompanies the modification application, consistent with the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
4. I have considered whether the land is contaminated, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. As the proposed modification relates to a penthouse apartment, on Level 6 rooftop of an existing building the subject of the original consent, I am satisfied the land is suitable for the purpose for which the development is proposed to be carried out.
[2]
Conclusion
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.
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 Court notes that:
1. Burwood Council, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, approves the amendment to Modification Application No MOD.10.2017.124.5 by way of substituting the following plans as the plans subject of the application:
Site/Roof Plan Mackenzie Architects International A0003 Issue C 13.07.2023
Penthouse Floor Plan Mackenzie Architects International A0004 Issue F 13.07.2023
West Elevation Mackenzie Architects International A2001 Issue A 07.07.2023
South & East Elevations Mackenzie Architects International A2002 Issue A 07.07.2023
Section A Mackenzie Architects International A2101 Issue A 07.07.203
[3]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development consent No DA.10.2017.124.1 is modified in the terms in Annexure A; and
3. Development Consent No DA.10.2017.124.1 as modified by the Court is Annexure B.
T Horton
Commissioner of the Court
[4]
Annexure A
Annexure B
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Decision last updated: 28 August 2023