WH Project Management Pty Ltd v Georges River Council [2020] NSWLEC 1508

Land and Environment Court New South Wales

Medium Neutral Citation: WH Project Management Pty Ltd v Georges River Council [2020] NSWLEC 1508 Hearing dates: Conciliation conference on 25 September 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Refer to orders below at [12] Catchwords: DEVELOPMENT APPLICATION – 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 (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Category: Principal judgment Parties: WH Project Management Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: S Gadiel (Solicitor) (Applicant) S Wilson (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent) File Number(s): 2020/60885 Publication restriction: No

Judgment 1. COMMISSIONER: WH Project Management Pty Ltd (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of its development application DA2017/0402 seeking approval for the demolition of an existing structures and construction of a 12 storey mixed use development with three levels of basement car parking (the Proposed Development) at 1 Butler Road, Hurstville, also identified as Lot 2 in DP 547762 (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 25 September 2020, and I presided over that conciliation conference. 4. The conciliation conference was convened in a manner consistent with the Court's 'COVID-19 Pandemic Arrangements Policy', and no site view was undertaken during the conference. 5. 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 granting consent to the Applicant's development application, subject to conditions. 6. 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. 7. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings are as follows: 1. Kogarah Local Environmental Plan 2012 (KLEP): Clause 4.6 'Exceptions to development standards'. * The Applicant relies on a written request prepared pursuant to cl 4.6 of KLEP to vary the development standard for the height of buildings (as would otherwise apply under cl 4.3(2) of KLEP). This request, dated 6 October 2020, is titled 'Revised Clause 4.6 submission requesting variation of Development Standard' (the clause 4.6 written request) and was prepared by HDC Planning. * The Parties advise, and I agree, that the clause 4.6 written request is well founded, as: 1. it meets the requirements of cl 4.6(3) of KLEP in that it seeks to justify the contravention of the development standard by demonstrating: * that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and * that there are sufficient environmental planning grounds to justify contravening the development standard. 1. the matters required by cl 4.6(4)(a) of the KLEP are satisfied. 2. the provisions of cl 4.6(4)(b) are satisfied as the concurrence of the Secretary of the Department of Planning, Industry and Environment is to be assumed under cl 64 of the Environmental Planning and Assessment Regulation 2000. 3. in any event (as per cl 4.6(5)): * the contravention of the development standard does not raise any matter of significance for State or regional environmental planning; and * there is no public benefit of maintaining the development standard in the present circumstances. 1. Kogarah Local Environmental Plan 2012: Other provisions 1. The Parties are satisfied that, with the exception of the non-compliance in relation to the height of buildings development standard discussed above at [(1)], the Proposed Development is compliant with all other provisions of KLEP, including in relation to the provisions of cl 4.4 concerning floor space ratio, as they apply to the Subject Site. 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) 1. The provisions of SEPP 55 apply to the land, and the following documents have been prepared: 1. a 'Stage 1 (Desktop) Environmental Site Assessment' dated 26 April 2017; 2. a 'Detailed Site Investigation' prepared by JK Environments dated 9 April 2020 (the DSI); and 3. a 'Remediation Action Plan' prepared by JK Environments dated 15 April 2020 (the RAP). 1. the land is contaminated and is not suitable for the Proposed Development in its current state. This is confirmed in the executive summary on page (iv) and section 8 of the DSI; 2. the land will be suitable after remediation for the purpose for which the development is proposed to be carried out (as per cl 7(1)(b) of SEPP 55). This is confirmed by section 11 of the RAP; 3. the land will be remediated before the land is used for that purpose as required under cl 7(1)(c) of SEPP 55, and this is confirmed within section 10.4 of the RAP. 1. State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) 1. The provisions of cl 86 of ISEPP, concerning 'excavation in, above, below or adjacent to rail corridors', apply to the Subject Site, and: 1. the Proposed Development involves the penetration of ground to a depth of at least 2m below ground level (existing) on land that is within 25m (measured horizontally) of a rail corridor; 2. the rail authority for the land, being Sydney Trains, was given written notice of the Proposed Development and determined to grant concurrence to the development, subject to a deferred commencement condition; 3. a deferred commencement condition required by Sydney Trains is set out at Condition 1 of Section A of the agreed Conditions of Consent which form Annexure A to the agreement between the Parties pursuant to s 34 of the LEC Act. 1. The provisions of cl 87 of ISEPP, concerning 'impact of rail noise or vibration on non-rail development', apply to the Subject Site, and: 1. the Proposed Development is on land in or adjacent to a rail corridor and is for the purposes of residential accommodation. 2. appropriate measures will be taken to ensure that the following LAeq levels are not exceeded: * in any bedroom in the residential accommodation — 35 dB(A) at any time between 10:00pm and 7:00am; and * anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time. 1. the Applicant's 'Statement of Environmental Effects', prepared by Devlin Planning (6 September 2017) (the SEE), and a 'DA Acoustic Assessment', prepared by Vipac Engineers and Scientists Limited (24 August 2017), confirm the manner by which the measures taken to ensure that required LAeq levels would not exceeded. 1. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 3. 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. 4. 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. 5. The Court orders that: 1. The applicant is granted leave to amend the development application and rely on: 1. the drawings and documents referred to in condition 1 of Annexure 'A' to this agreement; 2. 'Detailed Site Investigation' prepared by JK Environments dated 9 April 2020; 3. 'Remediation Action Plan' prepared by JK Environments dated 15 April 2020; and 4. 'Revised clause 4.6 submission requesting variation of Development Standard' prepared by HDC Planning dated 6 October 2020. 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $12,000, within 28 days of these orders being made. 2. The Applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012 seeking a variation of the development control for height of buildings set out in clause 4.3(2) of the Kogarah Local Environmental Plan 2012 is upheld. 3. The appeal is upheld. 4. Development Application DA2017/0402 for: 1. demolition of existing structures on the site; 2. construction of new mixed use buildings and ground floor commercial/retail, 11 levels of apartments and 3 levels of basement car parking; and 3. strata subdivision is granted subject to the conditions set out in Annexure 'A' to this agreement. 1. The Respondent is directed to register the development consent on the NSW planning portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 as soon as practicable following the entry of these orders.