Land and Environment Court New South Wales Medium Neutral Citation: Landmark Group Australia Pty Ltd v Georges River Council [2021] NSWLEC 1064 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 height and FSR development standards – retention of two heritage listed terraces – 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): 2020/143771 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing dwellings, the retention and adaptive re-use of two heritage listed terraces, and the construction of a new 12 storey residential flat building and lot consolidation, at 6-16 Victoria Street, Kogarah. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal 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 that result from the grant of leave include an increase to the basement setback to increase deep soil landscaping, and some changes to the side elevation so that the silhouette of the heritage items is better perceived. 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 42.4m represents a contravention of 9.4m above the numerical standard. The proposal is for a 12 storey building, which is one-storey higher than that which would ordinarily be able to be achieved within the 33m height control. The contravention of the height development control therefore includes the additional residential storey, the communal open space slab, balustrade, shade structures, lift overrun and the access stair. The elements with the greater height, the lift overrun, shading structures and access stairs, are setback from the Victoria Street 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 and dated October 2020, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that: 1. The proposed development has increased floor to ceiling heights on the ground and first floor to match those of the retained heritage listed terraces, 2. The additional storey provides for additional floor space which is necessary to facilitate the maintenance of the heritage items, by achieving a viable development that accommodates the cost involved in the retention and restoration of the principal facades of the heritage listed terraces and their interiors, 3. the breach of the height development standard also allows communal open space to be provided on a roof top terrace so as to achieve improved amenity for future residents, and 4. the incorporation of the heritage items as part of the development, which is made possible only by the breach of the height and floor space ratio ("FSR") development standards, avoids the poor outcome of the terraces becoming isolated between 11-storey developments on all sides and allows for their restoration. 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. I am satisfied that consent should be granted notwithstanding the contravention of the FSR development standard. The development standard establishes a maximum FSR of 4:1, pursuant to cl 4.4 of the KLEP 2012. The gross floor area of the proposed development is 7036m2, which equates to a FSR of 4.23:1. The proposal therefore seeks to vary the FSR standard by 384m2 or 5.77%. The additional floor space is wholly attributed to the additional storey described above, as the additional floor space equates to 80% of the top floor. I am satisfied that: 1. The written request, lodged pursuant to cl 4.6 of the KLEP 2012 and dated August 2020, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard by demonstrating that: 1. The additional floor space is necessary to facilitate the maintenance of the heritage items, by achieving a viable development that accommodates the cost involved in the retention and restoration of the principal facades of the heritage listed terraces and their interiors, and 2. The fall of the land allows the additional floor space manifested in the additional storey to be an appropriate contextual fit that is compatible with future adjoining development. 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 effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the KLEP 2012. I am satisfied that the proposed development enables the retention and restoration of the heritage items, whilst also incorporating them in the proposed development in a manner that maintains a coherent streetscape presentation and achieves appropriate recognition of their heritage significance. 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 26 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 October 2020, seeking a variation of the development standard for height of buildings under clause 4.3 of the Kogarah Environmental Plan 2012 is upheld. 4. The applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012, prepared by Sutherland & Associates Planning, dated August 2020, seeking a variation of the development standard for floor space ratio under clause 4.4 of the Kogarah Environmental Plan 2012 is upheld. 5. The appeal is upheld. 6. Development Application No. DA2020/0128 lodged on 30 March 2020, as amended, for demolition of existing dwellings, retention and adaptive re-use of two heritage listed terraces, and construction of a new 12 storey residential flat building containing 83 apartments over 3 basement levels, and lot consolidation, at 6-16 Victoria Street, Kogarah is approved subject to the conditions at Annexure B. ………………………. J Gray Commissioner of the Court Annexure A (129133, pdf) Annexure B (413877, pdf) ********** Amendments 11 February 2021 - annexured 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