Land and Environment Court New South Wales Medium Neutral Citation: The Gallery at Kogarah Pty Limited v Georges River Council [2020] NSWLEC 1426 Hearing dates: Conciliation conference on 6 August 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted for the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount to be agreed or assessed. (3) The Applicant's Clause 4.6 written request application prepared by Mersonn Pty Ltd in relation to the height of buildings development standard contained in clause 4.3 of the Kogarah Local Environmental Plan 2012 (NSW) is upheld. (4) The appeal is upheld. (5) Development consent is granted to Development Application No. DA2020/0022 lodged with the Respondent on 24 January 2020 and as now amended with the plans, drawings and material listed at Annexure A for the demolition of all existing buildings and structures and construction of an 11 storey residential flat building with 3 levels of basement parking at 58-68 Regent Street, Kogarah, subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION – residential flat building - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: The Gallery at Kogarah Pty Limited (Applicant) Georges River Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/132825 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of an 11-storey residential flat building with 3 levels of basement parking at 58-68 Regent Street, Kogarah. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 6 August 2020. I presided over the conciliation conference. 3. Following 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. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments made through the grant of leave include the deletion of habitable space that exceeded the height development standard, the adjustment of the balcony line on Levels 1-3 to allow for canopy planting, and a change to the building line to the north to allow for a 6m setback. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The site is zoned R4 High Density Residential, pursuant to the Kogarah Local Environmental Plan 2012 ("KLEP 2012"), in which residential flat buildings are permitted with consent. 2. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 33m, pursuant to cl 4.3 of the KLEP 2012. The proposed maximum height of 38.46m represents a contravention of 5.46m above the numerical standard. The contravention is confined to the communal open space slab, balustrade, shading, lift overrun and the access stair. The elements with the greater height, the lift overrun, shading structure and access stairs, are setback from the Regent Street and Stanley Lane frontage so that they will have very little visual impact on the streetscape. I am satisfied that: 1. The written request, lodged pursuant to cl 4.6 of the KLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that: 1. the breach allows the built form of 11-storeys, which creates consistency in the streetscape by providing a design that is consistent with the built form of approved developments to the immediately to the east, and 2. the breach of the height development standard allows communal open space to be provided on a roof top terrace so as to achieve an improved level of solar access for the communal open space, particularly in circumstances where development to the north of the site leads to shading of the ground plane of the subject site. 1. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. 2. Based on the contents of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 1. The proposed development is not contrary to any other development standards in the KLEP 2012 or in any other applicable environmental planning instrument. 2. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 3. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. Leave is granted for the Applicant to rely on the amended and additional plans, drawings and materials as referred to in the conditions of consent at Annexure B and listed at Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount to be agreed or assessed. 3. The Applicant's Clause 4.6 written request application prepared by Mersonn Pty Ltd in relation to the height of buildings development standard contained in clause 4.3 of the Kogarah Local Environmental Plan 2012 (NSW) is upheld. 4. The appeal is upheld. 5. Development consent is granted to Development Application No. DA2020/0022 lodged with the Respondent on 24 January 2020 and as now amended with the plans, drawings and material listed at Annexure A for the demolition of all existing buildings and structures and construction of an 11 storey residential flat building with 3 levels of basement parking at 58-68 Regent Street, Kogarah, subject to the conditions at Annexure B. ……………………… J Gray Commissioner of the Court Annexure A (129291, pdf) Annexure B (419405, pdf) ********** 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: 11 September 2020