Agenda of Local Planning Panel Meeting - Thursday, 31 October 2024

Item No: 2.1
Title: Supplementary Report - DA/1849/2005/B - 2-6 Fairport Avenue & 46-48 Ocean Parade, The Entrance - Residential Flat Building and Demolition of Existing Structures (Amended Application)
Department: Environment and Planning
31 October 2024 Local Planning Panel Meeting

Reference: DA/1849/2005/B - D16478646

Author: Rebecca Samways, Development Planner.Employment and Urban Release

Unit Manager: Andrew Roach, Unit Manager. Development Assessment

Summary

A section 4.55(2) application has been received to modify a consent for a residential flat building (comprising 45 units) and demolition of existing structures. The application has been examined having regard to the matters for consideration detailed in Section 4.15 and Section 4.55 of the Environmental Planning and Assessment Act 1979 and other statutory requirements.

The Local Planning Panel considered the matter at its meeting of 23 September 2021 (report included as Attachment 2). The matter was deferred at the meeting pending the submission of supplementary information regarding:

a. Physical commencement

b. Suitability of the proposed species and height, in consideration of potential view loss within the north eastern corner of the lot

A Supplementary Report was provided to the Panel on 18 July 2022 (report included as Attachment 3) addressing the matters raised in the meeting minutes from the 23 September 2021 meeting. Upon review of the supplementary report and the submission of further legal correspondence prepared by Mills Oakley on behalf of the applicant, the Chair of the LPP requested a further round of legal advice be obtained in relation to the legal advice received from Mills Oakley, specifically in relation to physical commencement.

A second Supplementary Report was considered at a Panel meeting on 22 August 2024 (report included as Attachment 4) which provided further information regarding the correspondence prepared by Mills Oakley which was received since the preparation of the first Supplementary Report and included comments from a Landscape Architect.

The matter was deferred at the meeting pending further legal advice regarding:

a. Whether physical commencement of the development consent DA/1849/2005, granted on 19 June 2006, has been established in accordance with section 95(4) (now section 4.53) of the Environmental Planning and Assessment Act 1979.

b. Whether estoppel by representation arises from the letter provided by Council dated 29 September 2009.

c. Whether the proposed modification will result in substantially the same development as the development for which the consent was originally granted, within the meaning of s4.55(1A) of the Environmental Planning and Assessment Act 1979.

This Supplementary Report provides a summary of the legal advice. The legal advice, obtained by Council to address the matters requested by the Panel, is included in full as Confidential Attachment 1)

Applicant Planning Lab

Owner Fincorp Pty Ltd

Application No DA/1849/2005/B

Description of Land Lot 200 DP 1140826, Lot B DP 364571 & Lot C DP 364571

2-6 Fairport Avenue & 46 – 48 Ocean Parade, The Entrance

Approved Development Residential Flat Building comprising 45 units and Demolition of Existing Structures

Proposed modification Increase in the number of units from 45 to 56, removal of level 3 basement carpark and reduction of carparking spaces from 84 to 72, internal reconfiguration of apartments, change of rooftop private open space to communal open space, increase in building height and external design changes

Site Area 3258m²

Zoning R3 Medium Density Residential

Existing Use Multi dwelling housing/vacant lot

Employment Generation Nil

Estimated Value $20,731,286

Recommendation

1 That the additional information be considered in the Panel’s determination of the application.

2 In the event that the Local Planning Panel are of the view that sufficient evidence has been provided that Development Consent DA/1849/2005 has physically commenced and is substantially the same, the Panel approve the modifications to Development Application 1849/2005/B at Lot 200 DP 1140826, Lot B DP 364571 & Lot C DP 364571, 2-6 Fairport Ave & 56-48 Ocean Parade, THE ENTRANCE in accordance with the recommendation included in the initial report on the matter (23 September 2021) subject to the amendments detailed in the schedule attached to that report and having regard for the matters for consideration detailed in Section 4.15 and Section 4.55(2) of the Environmental Planning and Assessment Act 1979.

3 That Council advise those who made written submissions of the Panel’s decision.

Precis

Proposed Development	Modification of consent for a residential flat building and demolition of existing structures
Permissibility and Zoning	The site is zoned R3 Medium Density Residential under Wyong Local Environmental Plan 2013 (WLEP). A residential flat building is permissible in the zone.
Current Use	Multi dwelling housing/vacant lot
Integrated Development	No
Submissions	· 25 submissions original LPP report · 11 submissions latest notification period for the first Supplementary Report

Background

The Panel considered a Supplementary Report on the matter at its meeting on 22 August 2024 and resolved as follows:

Panel Decision

1 The Council obtain an advice from suitably experienced counsel, within 21 days, as to whether:

a. physical commencement of the development consent DA/1849/2005, granted on 19 June 2006, has been established in accordance with section 95(4) (now section 4.53) of the Environmental Planning and Assessment Act 1979,

b. estoppel by representation arises from the letter provided by Council dated 29 September 2009, and

c. the proposed modification will result in substantially the same development as the development for which the consent was originally granted, within the meaning of s4.55(1A) of the Environmental Planning and Assessment Act 1979.

2 That the Local Planning Panel defer this matter for electronic determination, pending provision of the advice referred to in item 1.

3 The Council advise those who made written submissions of the Panel's decision

Reasons

1 The Panel has received conflicting legal advice on the physical commencement and estoppel issues.

2 The Panel has not received written legal advice on the question of whether the development as modified is substantially the same as the originally approved development.

Council sought further legal advice from senior counsel in relation to the matters raised in the Panel’s decision. The legal advice is attached in Confidential Attachment 1 and is summarised below.

ISSUE A - Physical Commencement

The legal advice provided in Confidential Attachment 1, advises that there is sufficient evidence to demonstrate that partial demolition of the dwellings at 2 and 4 Fairport Avenue were physically commenced on the land prior to the lapse date. However, there is insufficient evidence to demonstrate that the relevant demolition works carried out on the site prior to the lapse date were carried out in accordance with the relevant conditions of the consent.

As the relevant prior to commencement of demolition works conditions are required to be complied with in order to establish physical commencement, it was concluded in this instance that the consent has lapsed and there is no power for the LPP to approve the modification application.

ISSUE B - Estoppel

The legal advice provided in Confidential Attachment 1, advises that there are substantial obstacles for the applicant to succeed in claiming damages based on estoppel.

Notwithstanding this, it is also noted that this is irrelevant for consideration in the Panels determination of the section 4.55(2) application.

ISSSUE C - Substantially the Same Development

The legal advice provided in Confidential Attachment 1, advises that while the modifications proposed are numerous and, in many cases, not insignificant, the proposed modifications appear to retain the same essential or material features. The changes are not so significant that the proposed development is not substantially the same as the development to which consent was originally granted.

Other Matters

Contributions

Condition 2 which levied the payment of contributions was recommended to be updated in the original report to the Local Planning Panel on 23 September 2021. Since the application was reported to the Local Planning Panel, contribution rates have been indexed. Accordingly, condition 2 has been updated in the modified conditions of consent in Attachment 5 in the event the application is approved.

Conclusion

This supplementary report and the previous supplementary reports, along with the report considered by the Panel on 23 September 2021, has been prepared and assessed against the matters for consideration of Sections 4.15 and 4.55 of the Environmental Planning & Assessment Act 1979 and all relevant instruments, plans and policies.

Council has sought its own further legal advice in relation physical commencement, estoppel and substantially the same development per the Panel’s decision at its 22 August 2024 meeting.

It is a matter for the LPP to decide whether they are satisfied physical commencement has occurred and whether the proposed modified development is substantially the same. The LPP should have regard to all information included in the attachments to this Report, a number of which are confidential documents and are, therefore, not addressed in detail in this public document.

Attachments

1	Confidential Attachment dated 25 September 2024 -	Provided Under Separate Cover	D16478698
2	Original Assessment Report - 23 September 2021 LPP Meeting	Provided Under Separate Cover	D14810016
3 ⇩	First Supplementary Report distributed to LPP on 18 July 2022		D15327792
4 ⇩	Third Supplementary Report - 22 August 2024 LPP Meeting		D16288819
5 ⇩	Updated Modified Conditions of Consent		D15037217
6 ⇩	DA 1849 2005 B - 2-6 Fairport Avenue & 46-48 ~ Residential Flat Building and Demolition of Existing Structures (Amended Application)_Redacted		D16480099

*2.1*	*Supplementary Report - DA/1849/2005/B - 2-6 Fairport Avenue & 46-48 Ocean Parade, The Entrance - Residential Flat Building and Demolition of Existing Structures (Amended Application)*
*Attachment 6*	*DA 1849 2005 B - 2-6 Fairport Avenue & 46-48 ~ Residential Flat Building and Demolition of Existing Structures (Amended Application)_Redacted*

Item No: 1.1
Title: Disclosures of Interest
Department: Governance
31 October 2024 Local Planning Panel Meeting

*2.1*	*Supplementary Report - DA/1849/2005/B - 2-6 Fairport Avenue & 46-48 Ocean Parade, The Entrance - Residential Flat Building and Demolition of Existing Structures (Amended Application)*
*Attachment 3*	*First Supplementary Report distributed to LPP on 18 July 2022*

*2.1*	*Supplementary Report - DA/1849/2005/B - 2-6 Fairport Avenue & 46-48 Ocean Parade, The Entrance - Residential Flat Building and Demolition of Existing Structures (Amended Application)*
*Attachment 4*	*Third Supplementary Report - 22 August 2024 LPP Meeting*

*2.1*	*Supplementary Report - DA/1849/2005/B - 2-6 Fairport Avenue & 46-48 Ocean Parade, The Entrance - Residential Flat Building and Demolition of Existing Structures (Amended Application)*
*Attachment 5*	*Updated Modified Conditions of Consent*