Land and Environment Court New South Wales Medium Neutral Citation: Kai-Tian Group Kogarah Pty Ltd v Georges River Council [2021] NSWLEC 1271 Hearing dates: Conciliation conference on 27 April 2021, final agreement filed 13 May 2021 Date of orders: 25 May 2021 Decision date: 25 May 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away in the agreed amount of $5,000 within 14 days of these orders being made. (2) The Applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012 (the KLEP), prepared by Planning Ingenuity and dated 1 March 2021 seeking a variation of the development standard for height of buildings set out in clause 4.3 of the KLEP, is upheld. (3) The appeal is upheld. (4) Consent is granted to Development Application DA/2017/0597 for the demolition of the existing structures and construction of a residential flat building over basement parking, with associated landscaping and drainage works, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – residential flat building – clause 4.6 written request – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Kogarah Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Kai-Tian Group Kogarah Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: S Gadiel (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/285043 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA/2017/0597 (DA). The DA sought consent for the demolition of the existing structures and construction of a residential flat building over basement parking, with associated landscaping and drainage works at 18-24 Victoria Street, Kogarah (the site) by Georges River Council (the Respondent). 2. The Court arranged a conciliation conference and hearing under s 34A of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 April 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. Leave had previously been granted by the Court for the Applicant to amend the development application and to rely on amended plans. The final amended plans formed the subject of the conciliation 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. The agreement involves the Court upholding the appeal and granting development consent to the amended proposal subject to conditions. 6. Whilst the amended proposal remains largely consistent with the original development application, a series of design amendments cumulatively resolve the contentions raised by the Respondent, which related primarily to site planning, building separation, streetscape, design quality and architectural expression. 7. In summary, the agreed amendments have the effect of improving the siting of the proposal and enhance its relationship to the immediate context, including the adjacent listed heritage item, improving amenity, solar access and privacy benefiting both the subject site and its immediate neighbours. 8. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard the parties agree, and I am satisfied, the Kogarah Local Environmental Plan 2012 (KLEP) is the relevant environmental planning instrument. The site is zoned R4 High Density Residential, and the amended proposal, characterised as a residential flat building, is permissible with consent. 11. I am satisfied the amended proposal meets the Zone R4 objectives set out at cl 2.3(2) of the KLEP because it contributes to the provision of housing needs within a high-density residential environment, and because the final amended proposed improves its design quality, environmental performance and appearance. 12. The amended proposal is consistent with all relevant development standards set out within the KLEP, except for a non-compliance with the height of building set out in cl 4.3 of the KLEP. The amended proposed has a maximum height of approximately 35 metres and represents a variation of approximately 6% to the numerical development standard of 33 metres. 13. Clause 4.6(3) of the KLEP requires consideration of a written request from the Applicant demonstrating compliance with a 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. 14. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 15. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 16. The Applicant has provided a clause 4.6 written request, prepared by Planning Ingenuity and dated 1 March 2021, seeking to justify non-compliance with the height of building development standard, and demonstrate the objectives set out in cl 4.1 of the KLEP have been met. 17. The extent of building height exceedance is relatively minor, and is primarily concentrated towards the centre of the amended proposal's built form. That portion of the amended proposal which contributes to the height exceedance contains no gross floor area and therefore does not contribute to the amended proposal's floor space ratio. Similarly, the height exceedance is configured in such a manner to not create additional overshadowing or visual impacts, and serves to facilitate equitable access to the rooftop communal open space. 18. As such, I am satisfied the Zone R4 objectives of the height of building development standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the particular land use zone, I also consider the amended proposal will be in the public interest. 19. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the height of building development standard. 20. Clause 5.10 of the KLEP - Heritage conservation - sets out matters to be considered prior to any grant of consent. The site is situated adjacent to a listed heritage item - terraces "Beatrice" and "Lillyville" at 14-16 Victoria Street, Kogarah - identified in the Heritage Map and in Schedule 5 of KLEP. The parties agree, and I am satisfied, the Applicant's heritage assessment demonstrates cl 5.10(4) has been satisfactorily considered and resolved in the final amended proposal. The final form of the amended proposal reflects the scale and rhythm of the listed terraces within its lower levels immediately adjacent. 21. I am satisfied State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree that the land is not presently contaminated having regard to the Phase I and Phase II reports submitted with the Class 1 Application. Appropriate conditions of consent have been imposed to address any potential contamination. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed. 22. The parties agree, and I am satisfied, a BASIX Certificate has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 23. A Design Verification Statement, prepared by Mr Peter Smith architect (NSW Architects Registration Board registration number 7024) has been provided in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development. 24. The amended proposal was publicly notified by the Respondent from 18 March 2021 to 1 April 2021. No submissions were received. Earlier submissions received in response to the original proposal have been considered by the Applicant in the preparation of the amended proposal. 25. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering and responding to submissions from objectors, the final amended proposal is in the public interest. 26. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away in the agreed amount of $5,000 within 14 days of these orders being made. 2. The Applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012 (the LEP), prepared by Planning Ingenuity and dated 1 March 2021 seeking a variation of the development standard for height of buildings set out in clause 4.3 of the LEP, is upheld. 3. The appeal is upheld. 4. Consent is granted to Development Application DA/2017/0597 for the demolition of the existing structures and construction of a residential flat building over basement parking, with associated landscaping and drainage works, subject to the conditions set out in Annexure 'A'. ……………………….... M Pullinger Acting Commissioner of the Court Annexure A (695392, pdf) Architectural Plans (21279064, 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: 25 May 2021