Australia, June 9 -- New South Wales Land and Environment Court issued text of the following judgement on May 9:

1. COMMISSIONER: These Class 1 proceedings arise as a result of Modification Application 166/2023/2, made directly to the Court pursuant to s 4.55 (8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application seeks to modify development consent DA 166/2023/1, which permitted the demolition of three existing dwelling and the construction of a thirteen (13) unit residential apartment building with basement carparking, landscaping and other works at 214-218 Victoria Road, Bellevue Hill.

2. The modification application includes internal reconfiguration at all levels, extension to units to the rear and/or the front, the conversion of one dual key unit into two separate units, and the provision of a roof terrace to service the top level units. Although the majority of the proposed extensions will be located within the approved building envelope, due to extensions to the edge of the top level units and the addition of the balustrade for the roof terrace, the modified design will increase the overall height of the building from 14.29m to 15.79m. The floor space ratio (FSR) will also increase from 1.31:1 to 1.56:1.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 April 2025. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court approving the application to modify the consent in accordance with the modification application.

4. During the conciliation conference, the Council agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the modification application to adequately respond to the Council's contentions. In summary, the amendments to the application include:

1) Reconfiguration of the bicycle parking and basement storage

2) Revised storage and tree canopy calculations

3) Permeable paving/decking to units 1 & 2 private open space proposed

4) Revised layouts to units 6 and 9 to include linen store.

5) Revised landscape plans.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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(8) of the EPA Act to modify the development for which consent was originally granted by the Court.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

7. The requested modification will not alter the building use, number of floors, or amenity impacts. The building will maintain the same envelope as the increase in floor space is largely the result of the infill of parts of balconies, and areas previously described as 'articulation zones'. On this basis, pursuant to the requirements of s 4.55(2) of the EPA Act, I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

8. No further consultation is required pursuant to the requirements under EPA Act s 4.55(2)(b), and the application was notified as required under s 4.55(2)(c) between 4 and 19 December 2024. Two submissions were received during this time, and two speakers made oral submissions at the commencement of this conciliation conference. Prior to the conference, with the consent of the applicant, the objectors were provided with the amended plans which now form the amended application before the Court. The issues raised include:

1) Noise control measures

2) Working hours

3) Inaccuracy of documentation

4) Acoustic and visual privacy

5) Excessive FSR

6) Excessive height

7) Solar access

9. The parties have taken me through the matters relating to each issue raised and I am satisfied that all submissions made concerning the proposed modifications have been considered. In particular, I am satisfied that the proposed development will not have any adverse impacts on privacy, which was a point of some focus in the on-site submissions made, due to the set back of the proposed roof terrace. The roof terraces are fully enclosed with no gates or access beyond. The roof is otherwise non-trafficable, as per the application and the parties' agreement.

10. Based on the information contained in the parties' submissions and the original judgment of the Court at Cooper View Developments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1122, I am satisfied that the reasons given by the consent authority for the grant of consent that is sought to be modified have been considered.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968f7bfdfdf61e78092ccb5)

Disclaimer: Curated by HT Syndication.