Land and Environment Court New South Wales Medium Neutral Citation: Edrik Properties Pty Ltd trading as Vortex Property Group (NSW) v Georges River Council [2021] NSWLEC 1172 Hearing dates: Conciliation conference on 19 March 2021 Date of orders: 09 April 2021 Decision date: 09 April 2021 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [9] Catchwords: MODIFICATION APPLICATION – Residential Flat Building – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 4.55 Environmental Planning and Assessment Regulation 2000 cll, 50, 115, 143 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 3 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Kogarah Local Environmental Plan 2012, cl 6.2 Cases Cited: Gann v Sutherland Shire Council [2008] NSWLEC 1228 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310 Vortex Property Group Pty Ltd v Georges River Council [2019] NSWLEC 1153 Texts Cited: Kogarah Development Control Plan 2013, clause 2.2 Georges River Council's Community Engagement Strategy Category: Principal judgment Parties: Edrik Properties Pty Ltd trading as Vortex Property Group (NSW) (Applicant) Georges River Council (Respondent) Representation: Counsel: N Eastman (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent) File Number(s): 2020/138206 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) made directly to the Court to modify development consent DA 2017/0519 granted by the Court (Vortex Property Group Pty Ltd v Georges River Council [2019] NSWLEC 1153 (Vortex)) at 2 – 4 Gladstone Street and 10 Victor Street, Kogarah (the site). 2. The development consent DA 2017/0519 was granted by the Court on 11 April 2019 for: * the demolition of two existing single dwellings and various freestanding buildings; * the construction of a nine and ten storey residential flat building containing 29 units; * ground level retail space; and * three levels of basement car parking accessed via a car lift (approved development). 1. The proposed development seeks consent for (Modification Application): * addition of three residential units from 29 units to 32 units; * removal of the car lift and replacement with a ramp; * addition of 2 levels of basement (total of 5 levels, instead of 3 levels); * addition of 3 car parking spaces, totalling 35 spaces; * relocation of the bicycle parking from ground level setbacks to basement levels; * adjustments to the ground level waste, storage and shop design including increase in frontage of shop to the laneway; * reconfiguration of the built form surrounding the basement entry; * internal reconfiguration of units to accommodate relocated core; * adjustments of vehicle manoeuvring area and footpath at Railway Lane; and * redesign of Level 10 including the relocation of the roof top communal open space from northern side to southern side of the building and reduction in size of Level 10 unit from a 3 bedroom to a 2 bedroom unit. 1. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55 of the EPA Act. 2. The proceedings commenced as a hearing, however during the course of the Respondent's opening address the parties, by consent, sought an adjournment to undertake further discussions to seek to narrow the issues in dispute or to reach agreement. The hearing was adjourned, and the matter listed for conciliation. At the conciliation conference, an agreement, under s 34(3) of the Land and Environment Court Act (LEC Act), was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 26 March 2021. 3. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons: 1. The site is zoned R4 High Density Residential under the Kogarah Local Environmental Plan 2012 (LEP 2012). The proposed development of a residential flat building and neighbourhood shop is permissible with consent within the zone. 2. In accordance with s 4.55(2)(a) of the EPA Act, the modification application is substantially the same development as the development for which consent was originally granted. 3. Pursuant to s 4.55(2)(b) of the EPA Act, an amended controlled activity approval has been obtained from Sydney Airport. Further, Sydney Trains have also provided their concurrence to the Modification Application. Finally, Ausgrid have provided their approval to the Modification Application. 4. Pursuant s 4.55(3) of the EPA Act, the Development Consent the subject of this Modification Application was granted by the Court as detailed in Vortex. The reasons for the decision have been taken into consideration in determining the Modification Application. 5. The Modification Application satisfies all requirements as mandated by cl115 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 6. The Modification Application was notified in accordance with Georges River Council's Community Engagement Strategy, and the Kogarah Development Control Plan 2013 Clause 2.2. Submissions received have been considered in determining the Modification Application. 7. The height increase sought under the Modification Application contravenes the height control. It is noted that a written request under clause 4.6 of LEP 2012 is not required as this is an application seeking to modify an already approved development distinct from a development application for consent (see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163, Gann v Sutherland Shire Council [2008] NSWLEC 1228 and Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310). 8. The Modification Application seeks approval to undertake further levels of excavation. Following a review of the Modification Application, including geotechnical, drainage and structural information, I am satisfied that the matters in cl 6.2 of LEP 2012 have been considered. 9. Consistent with cl 3 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate has been submitted. 10. The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans COVER SHEET DA‐0‐001 V 19/03/2021 Dickson Rothschild Architects PROJECT SUMMARY DA-0-002 T 19/03/2021 Dickson Rothschild Architects PLAN OF LAND DEDICATION & LOT CONSOLIDATION SK-0-1220 B 3/02/2021 Dickson Rothschild Architects BASEMENT 5 FLOOR PLAN SK-0-1990 B 22/02/2021 Dickson Rothschild Architects BASEMENT 4 FLOOR PLAN SK-0-2000 B 22/02/2021 Dickson Rothschild Architects BASEMENT 3 FLOOR PLAN SK-0-2010 C 22/02/2021 Dickson Rothschild Architects BASEMENT 2 FLOOR PLAN SK-0-2020 B 22/02/2021 Dickson Rothschild Architects BASEMENT 1 FLOOR PLAN SK-0-2030 E 19/03/2021 Dickson Rothschild Architects GROUND FLOOR PLAN SK-0-2110 D 19/03/2021 Dickson Rothschild Architects LEVEL 1-2 FLOOR PLAN SK-0-2120 C 19/03/2021 Dickson Rothschild Architects LEVEL 3-9 FLOOR PLAN SK-0-2130 B 19/03/2021 Dickson Rothschild Architects LEVEL 10 ROOFTOP FLOOR PLAN SK-0-2160 B 19/03/2021 Dickson Rothschild Architects ROOF PLAN SK-0-2170 B 19/03/2021 Dickson Rothschild Architects REFLECTED CEILING PLAN - LEVEL 1-2 SK-0-3110 A 19/03/2021 Dickson Rothschild Architects REFLECTED CEILING PLAN - LEVEL 3-9 SK-0-3120 A 19/03/2021 Dickson Rothschild Architects SOUTH ELEVATION DA-0-301 V 19/03/2021 Dickson Rothschild Architects NORTH ELEVATION DA-0-302 T 19/03/2021 Dickson Rothschild Architects EAST AND WEST ELEVATION DA-0-303 U 19/03/2021 Dickson Rothschild Architects SECTION A-A DA-0-401 CC 19/03/2021 Dickson Rothschild Architects SECTION B-B DA-0-402 Y 19/03/2021 Dickson Rothschild Architects SECTION C-C DA-0-403 P 19/03/2021 Dickson Rothschild Architects Section D-D Section E-E DA-0-404 A 19/03/2021 Dickson Rothschild Architects SECTION A-A SECTION B-B SK-0-4110 A 19/03/2021 Dickson Rothschild Architects WET AREA SECTION SK-0-7021 B 19/03/2021 Dickson Rothschild Architects KITCHEN AREAS SK-0-7022 B 19/03/2021 Dickson Rothschild Architects GFA PLANS DA-0-901 O 19/03/2021 Dickson Rothschild Architects DEEP SOIL AND C.O.S DIAGRAM DA-0-903 H 21/10/2020 Dickson Rothschild Architects SOLAR & CV DA-0-911 P 19/03/2021 Dickson Rothschild Architects MATERIALS & FINISHES SCHEDULE DA-0-941 K 6/05/2020 Dickson Rothschild Architects SHADOW ANALYSIS - WINTER SOLSTICE DA-0-951 L 21/10/2020 Dickson Rothschild Architects SHADOW ANALYSIS - SUMMER SOLSTICE DA-0-952 K 21/10/2020 Dickson Rothschild Architects SHADOW ANALYSIS - KOGARAH HIGH SCHOOL DA-0-961 I 21/10/2020 Dickson Rothschild Architects WASTE MANAGEMENT PLAN SK-0-9050 B 10/03/2021 Dickson Rothschild Architects 3D HEIGHT EXCEEDANCE PLANE SK-0-9210 C 19/03/2021 Dickson Rothschild Architects HEIGHT PLAN SECTIONS DIAGRAMS SK-0-9220 D 19/03/2021 Dickson Rothschild Architects SITE ANALYSIS - STREETSCAPE ELEVATION - VICTOR STREET SK-0-132 H 21/10/2020 Dickson Rothschild Architects FACADE DETAIL 1/100 - FENCE SK-0-610 H 21/10/2020 Dickson Rothschild Architects FACADE DETAIL 1/50 - FENCE SK-0-611 C 6/05/2020 Dickson Rothschild Architects TYPICAL FLOOR TO CEILING HEIGHT SK-0-613 D 29/01/2019 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 9AM, 10AM SK-0-921a K 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 11AM, 12PM SK-0-922A K 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 1PM, 2PM SK-0-923A K 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 3PM SK-0-924 K 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 9AM, 10AM - WITH FUTURE COMPLIANCE SCENARIO SK-0-931 I 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 11AM, 12PM - WITH FUTURE COMPLIANCE SCENARIO SK-0-932 I 21/10/2020 Dickson Rothschild Architects VFS -WINTER SOLSTICE - 1PM, 2MP – WITH FUTURE COMPLIANCE SCENARIO SK-0-933 I 21/10/2020 Dickson Rothschild Architects VFS - WINTER SOLSTICE - 3PM - WITH FUTURE COMPLIANCE SCENARIO SK-0-934 J 21/10/2020 Dickson Rothschild Architects SHADOW ANALYSIS - SCHOOL OVAL SK-0-952 H 21/10/2020 Dickson Rothschild Architects SHADOW ANALYSIS - SCHOOL OVAL - WITH FUTURE COMPLIANCE SCENARIO SK-0-953 J 21/10/2020 Dickson Rothschild Architects SHADOW ANALYSIS - SCHOOL OVAL - EXISTING PLAYING FIELD SK-0-954 G 21/10/2020 Dickson Rothschild Architects RL FROM THE SURVEY AND PROPOSED BUILIDING SK-0-9200 B 03/02/2021 Dickson Rothschild Architects SEPP 65 Verification statement C 19/03/2021 Dickson Rothschild Architects Updated NatHERS and BASIX Assessment 21-1628 C 24/03/2021 Efficient Living 1. The appeal is upheld. 2. Development consent DA 2017/0519 granted by the Land and Environment Court is modified to provide for: 1. addition of three residential units from 29 units to 32 units; 2. removal of the car lift and replacement with a ramp; 3. addition of 2 levels of basement (total of 5 levels, instead of 3 levels); 4. addition of 3 car parking spaces, totalling 35 spaces; 5. relocation of the bicycle parking from ground level setbacks to basement levels; 6. adjustments to the ground level waste, storage and shop design including increase in frontage of shop to the laneway; 7. reconfiguration of the built form of the basement entry; 8. internal reconfiguration of units to accommodate relocated core; 9. adjustments of vehicle manoeuvring area and footpath at Railway Lane; and 10. redesign of Level 10 including the relocation of the roof top communal open space from northern side to southern side of the building and reduction in size of Level 10 unit from a 3 bedroom to a 2 bedroom unit. at 2 – 4 Gladstone Street and 10 Victor Street, Kogarah subject to conditions contained in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (585947, 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: 09 April 2021