Land and Environment Court New South Wales Medium Neutral Citation: Landmark Group Australia Pty Ltd v Georges River Council [2021] NSWLEC 1063 Hearing dates: Conciliation conference on 5 February 2021 Date of orders: 10 February 2021 Decision date: 10 February 2021 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] Catchwords: APPEAL – development application – residential flat building – breach of the height development standard – conciliation conference – agreement reached – orders made Legislation Cited: Architects Act 2003 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: Landmark Group Australia Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: E Whitney (Solicitor) (Applicant) S Wilson (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent) File Number(s): 2020/143770 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for demolition of the existing buildings, and construction of an 11-storey residential flat building over 3 levels of basement car parking and lot consolidation at 44-52 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 5 February 2021. 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. The agreement is supported by a Statement of Reasons, which sets out the background to the appeal, the nature of the amendments made to resolve the merit issues, and the jurisdictional preconditions identified by 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 to the development application that result from the grant of leave include an increased side boundary setback and greater articulation of the side boundary setback in order to create a better presentation in the event that the adjoining property is not developed, consequential changes in the floor plan and unit mix which results in an increase in residential apartments, changes to the podium design to improve solar performance, an increase in the basement and front setback to increase deep soil landscaping, and changes to the waste management design. 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 35.9m represents a contravention of 2.9m above the numerical standard. The contravention results from the provision of a roof top common open space area, and the elements that breach the height development standard include the lift overrun, the access stairs, the roof of the toilet and BBQ facilities, and parts of the planters, parapets and fixed seating. The proposed departure from the height development standard occurs predominantly within the centre of the site for the lift overrun and the fire stairs, which are set back from the edges of the building, such that they are recessive and have negligible visual impact when perceived from the street. 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 on Regent Street, 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, 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, there is no impact caused by the breach of the standard, and as the Council has consistently supported a variation to the building height development standard along this area of Regent Street to allow for 11-storey developments with roof top communal terraces. 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. 4. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB). The statement provided by Nicholas Byrne (Reg No.7806), dated 30 March 2020 appears to be in a complying form. 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 plans and additional information as referred to in the conditions of consent at Annexure B and listed at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs thrown away as a result of the amendment of the application for development consent in the agreed sum of $22,500.00 within 28 days of these orders being made. 3. The applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012, prepared by Sutherland & Associates Planning, dated March 2020, seeking a variation of the development standard for height under clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld. 4. The appeal is upheld. 5. Development Application No DA2020/0132 lodged on 2 April 2020, for demolition of existing dwellings, construction of a new 11 storey residential flat building containing 87 apartments over 3 basement carpark levels, and lot consolidation, at 44-52 Regent Street, Kogarah, is approved subject to the conditions at Annexure B. ………………………. J Gray Commissioner of the Court Annexure A (125513, pdf) Annexure B (345137, pdf) ********** Amendments 11 February 2021 - annexed plans removed 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 February 2021