Modification Application for Additional Commercial Space Allowed by Land and Environment Court

The Court granted a modification application to amend the ground floor level to include an additional commercial space at a specified property, subject to conditions. The application was made pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, and the Court found that the modification represented a minor change to the approved built form without altering the essential elements of the development.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v [NAME] [2024] NSWLEC 1259 Hearing dates: Conciliation conference 9 May 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Jurisdiction: Class 1 Before: [NAME] Decision: [ADDRESS] orders that: (1) The application is granted. (2) Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application DA/296/2019/D for amendment to the ground floor level including creation of an additional commercial space at 97 [NAME], NSW [POSTCODE] in the terms set out in Annexure A is approved. (3) The terms of the consolidated Development Consent DA/296/2019 are set out in Annexure B. Catchwords: MODIFICATION APPLICATION – application to the Court to modify a Court-granted consent shop top housing – conciliation conference – agreement reached. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Land and [ADDRESS] 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sustainable Buildings) 2022 [NAME] 2012, cll 4.4, 4.6, Cases Cited: [COMPANY] v [NAME] [2021] NSWLEC 1139 Texts Cited: [NAME] Agreement Policy 2014 Category: Principal judgment Parties: [COMPANY] (Applicant) [NAME] (Respondent) Representation: Counsel: [redacted] [NAME] (Solicitor) (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2023/443448 Publication restriction: No

JUDGMENT 1. COMMISSIONER: These proceedings are an application made to the Court to modify a development consent for demolition and construction of shop top housing which was granted by the Court on 17 March 2021 in proceedings [COMPANY] v [NAME] [2021] NSWLEC 1139 ([NAME] v [NAME]). The application seeks to modify the consent by amending the ground floor level to create a new commercial office space with concordant changes to glazing and layout. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. [ADDRESS] arranged a conciliation conference under s 34(1) of the Land and [ADDRESS] 1979 (LEC Act) between the parties, which was held on 9 May 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. That agreement is for the grant of consent to the modification application and subsequent amendments to the conditions of consent. The signed agreement is supported by an agreed jurisdictional statement, in which the parties address the applicable statutory planning framework and the jurisdictional issues that arise.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development which the consent as modified relates to is substantially the same development as the development for which consent was originally granted, for the reason that the modification concerns alterations to the ground floor which represent a minor change to the approved built form. The modification application does not change any essential element or result in any change to the type or size of the development, which remains a threestorey shop top housing development. The increase in the floor space is marginal, and the parties agree that there is minimal additional adverse impact on the neighbouring properties.

2. Further, I am satisfied that the notification requirements of s 4.55(2)(c) of the EPA Act have been met with the modification application being notified in its original and amended form. I am satisfied the submissions have been considered by the parties. Consistent with s 4.55(2)(d), in determining the application I have considered the submissions made with respect to the proposed modification.

3. The [NAME] 2012 (LEP 2012) remains the relevant local environmental plan. The Application seeks a further breach of the development standard at cl 4.4: Floor Space Ratio (FSR), however as the application is a modification application a variation request pursuant to cl 4.6 of LEP 2012 is not required. Notwithstanding the parties agree, and by reference to the architectural plans I agree, the additional gross floor area arising from the application is contained within the building envelope of the development approved under the original consent. Further, the annexed conditions capture the additional floor area in a Planning Agreement between the parties consistent with the [NAME] Agreement Policy 2014.

4. Consideration of the remaining requirements of LEP 2012 were detailed in [NAME] v [NAME] at [5] of the judgment and remain relevant and correct, with the exception of discussion of the applicable FSR, for the modification application.

5. The Modification Application does not propose works that result in surface disturbance or excavation beyond that approved in the development consent. Further, the modification application does not involve the removal of additional trees or vegetation.

6. The application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead. The modification application is accompanied by a BASIX certificate dated 23 October 2023 which demonstrates compliance with SEPP BASIX. The annexed conditions require compliance with the certificate.

1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).

2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. [ADDRESS] notes:

1. That the Respondent as the relevant consent authority has agreed, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application DA-296/2019/D to rely on the following documents:

1. Amended Basement and Ground Architectural Plan (Rev S) dated 12 February 2024 prepared by [NAME] (Job No J23562C).

2. Letter of Offer to enter Voluntary Planning Agreement dated 11 March 2024.

1. The Applicant has filed the amended documents with the Court on 9 May 2024. 1. [ADDRESS] orders that:

1. The application is granted.

2. Pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application DA/296/2019/D for amendment to the ground floor level including creation of an additional commercial space at 97 [NAME] in the terms set out in Annexure A is approved.

3. The terms of the consolidated Development Consent DA/296/2019 are set out in Annexure [NAME] Commissioner of the Court 2023.443448 Annexure A 2023.443448 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: 17 May 2024