Land and Environment Court New South Wales Medium Neutral Citation: Karavelas v Georges River Council [2021] NSWLEC 1298 Hearing dates: Conciliation conference on 17 May 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: (1) The Applicant is granted leave to rely on amended plans and materials as follows: (a) Amended architectural plans prepared by Cornerstone Design as referenced in Condition 1 of Annexure A; (b) Amended landscape plans prepared by Zenith Landscape Designs as referenced in condition 1 of Annexure A; (c) Amended stormwater plans prepared by Alpha Engineering and Development as referenced in Condition 1 of Annexure A; (d) Survey Accuracy Letter prepared by Buxton Surveyors and dated 13 November 2020; (e) Fire Engineering Memorandum prepared by J Squared Consulting Engineers and dated 6 May 2021; (f) SEPP 65 – Design Verification Statement Issue B prepared by N Lycenko Architect dated 8 May 2021; (g) BASIX Certificate No 978579M_04 prepared by Building and Energy Consultants Australia dated 12 May 2021. (2) The Applicant is to pay the Respondents costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.00 within 14 days of the date of these orders. (3) The appeal is upheld. (4) Development consent is granted to development application DA2018/0578 for the demolition of the existing detached dwelling house and ancillary structures and the construction of a residential flat building containing six apartments with basement car parking, landscaping and associated site works on Lot 206 DP 36317 known as 54 Lawrence Street, Peakhurst, subject to the conditions in the annexure marked "A" and in accordance with the plans marked "B" to this agreement. Catchwords: DEVELOPMENT APPLICATION – construction of a residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment Hurstville Local Environmental Plan 2012, cl 2.3 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 29, 30 Texts Cited: Hurstville Development Control Plan No 1 Category: Principal judgment Parties: William Karavelas (Applicant) Georges River Council (Respondent) Representation: Counsel: J Farrell (Applicant) S Puckeridge (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/222456 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2018/0578 by Georges River Council (hereafter the Council) which seeks demolition of existing structures and construction of a part three, part four storey residential flat building (RFB) comprising six (6) apartments with basement parking on Lot 206 DP 36317, also known as 54 Lawrence Street, Peakhurst (hereafter the site). 2. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties' request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 17 May 2021, without an onsite view and adopting Microsoft Teams. No objectors were heard at this conciliation. 4. Based on the amended plans (listed in Annexure B), together with the DA's supporting documents and agreed conditions of consent (Annexure A), the parties reached agreement as to the terms of a decision that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2018/0578 with conditions. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to the matters established in s 4.15(1), to grant consent to DA 2018/0578, with conditions, as described in Annexure A. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment (GMREP); Hurstville Local Environmental Plan 2012 (HLEP); and the Hurstville Development Control Plan No 1 (HDCP). 7. The parties agree that the proposed development complies with the relevant provisions of the SEPP 55. The Council accepts that the site has been used historically for residential purposes and based on the Stage 1 site assessment report, assesses that the site is suitable for the proposed development. Together with the conditions of consent, the parties are satisfied that the requirements of cl 7 of the SEPP 55 are addressed. The Court concurs, having sighted the Stage 1 site assessment report and conditions of consent. 8. The proposed development, as a RFB, is required to comply with the provisions of the SEPP 65. The amended DA is supported by a Design Verification Statement, which is sighted by the Court. The parties agree that the requirements of the SEPP 65, specifically cll 29 and 30 are addressed by the amendments shown in the plans and supporting documents to the DA. 9. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development has been sighted and is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 10. The GMREP applies to the proposed development on this site. The parties agree that the relevant principles, outcomes and objectives of the GMREP are addressed by the proposed development, and specifically as they relate to discharge to the Georges River. An easement for the drainage of water is required, described in stormwater plans and in the conditions of consent, as a deferred commencement condition. 11. The proposed development on the site is located within the R3 Medium Density Residential zone, as identified in the HLEP. The proposed development is permissible with consent and the parties agree satisfies the objectives of this zone, pursuant to cl 2.3. Council agrees that the contentions relating to the HLEP are resolved by the DA's amended plans and supporting documents, and conditions of consent. The parties agree that the relevant provisions of the HLEP are addressed. 12. The parties agree that the DA was publicly notified and also satisfies the requirements to address site isolation, in accordance with the HDCP. During the notification period for this DA under appeal, four submissions in objection were received by Council. 13. The parties advise the Court that the amended plans that support the DA have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council, issues by residents, and all jurisdictional requirements are resolved to the satisfaction of the parties. 14. The parties advised the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions, as raised. 15. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2018/0578 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 16. 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. 17. The Court orders: 1. The Applicant is granted leave to rely on amended plans and materials as follows: 1. Amended architectural plans prepared by Cornerstone Design as referenced in Condition 1 of Annexure A; 2. Amended landscape plans prepared by Zenith Landscape Designs as referenced in condition 1 of Annexure A; 3. Amended stormwater plans prepared by Alpha Engineering and Development as referenced in Condition 1 of Annexure A; 4. Survey Accuracy Letter prepared by Buxton Surveyors and dated 13 November 2020; 5. Fire Engineering Memorandum prepared by J Squared Consulting Engineers and dated 6 May 2021; 6. SEPP 65 – Design Verification Statement Issue B prepared by N Lycenko Architect dated 8 May 2021; 7. BASIX Certificate No 978579M_04 prepared by Building and Energy Consultants Australia dated 12 May 2021. 1. The Applicant is to pay the Respondents costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.00 within 14 days of the date of these orders. 2. The appeal is upheld. 3. Development consent is granted to development application DA2018/0578 for the demolition of the existing detached dwelling house and ancillary structures and the construction of a residential flat building containing six apartments with basement car parking, landscaping and associated site works on Lot 206 DP 36317 known as 54 Lawrence Street, Peakhurst, subject to the conditions in the annexure marked "A" and in accordance with the plans marked "B" to this agreement. ………………………… Sarah Bish Commissioner of the Court Annexure A (417788, pdf) Annexure B (4775689, 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: 27 May 2021