Land and Environment Court New South Wales Medium Neutral Citation: Loucas Architects Pty Ltd v Georges River Council [2022] NSWLEC 1368 Hearing dates: Conciliation conference on 6, 26 April 2022 and 9 May 2022 Date of orders: 19 July 2022 Decision date: 19 July 2022 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The appeal is upheld. (2) The request pursuant to clause 4.6 of Kogarah Local Environment Plan 2012 to vary the development standard for height of buildings contained in the clause 4.3 thereof, as prepared by BMA Urban dated 10 May 2022, is upheld. (3) Development Application No. DA/2020/0462 for demolition of existing structures and the construction of a six (6) storey residential flat building comprised of 25 apartments over two (2) levels of basement parking, landscaping works, site works and lot consolidation of Lot 1 in Deposited Plan 798485 and Lot 1 in Deposited Plan 126389 known as 176-178 Princes Highway Beverley Park, is approved subject to the conditions set out in Annexure "A" to this agreement. (4) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Application in the agreed amount of $18,000.00 within 28 days of the date of these orders. (5) Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) the parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in paragraph 1-4 above. Catchwords: DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Kogarah Local Environmental Plan 2012, cll 2.7, 4.3,4.4, 4.6, 6.1, 6.2 Georges River Local Environmental Plan 2021 Kogarah Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Category: Principal judgment Parties: Loucas Architects Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/337124 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2020/0462 (the DA) by Georges River Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 1138.1m2 parcel of land which was formerly legally described as Lot 1 in DP 798485 and Lot 1 in DP 126339 and known as 176-178 Princes Highway, Beverley Park (the Site). The DA as submitted to Council sought consent for the demolition of the existing structures and the construction of a six (6) storey residential flat building comprising 26 apartments of 5 x 1 bedroom, 19 x 2 bedroom and 2 x 3 bedroom apartments, over two levels of basement carparking, landscaping, site works and lot consolidation. 3. The Development Application was notified by the Respondent from 16 December 2020 and 15 January 2021. A total of two (2) submissions were received from the same person and these submissions have been considered by the Respondent and by the Court. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conferences which were held on 6 April, 26 April and 9 May 2022. Due to the Covid 19 protocols in place at the time, and by agreement between the parties, the conciliation conference was held via teleconference following the view of the site. Council provided a copy of all resident objections in advance of the conciliation conference. 5. The proposed development for which consent is sought has been amended by the applicant (Amended Development Application) and formed the basis of discussions at the s 34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and agreed conditions of consent with the Court on 13 May 2022 and copies of relevant plans and documents referred in the agreement also on 13 May 2022. 6. The main changes between the plans as originally submitted to Council and the Amended Development Application plans, the subject of the s 34 agreement, are: 1. A reduction in the number of apartments from 26 to 25 with the following dwelling mix: 7 x 1 bed units, 14 x 2 bed units and 4 x 3 bed units. 2. Revised basement design to provide increased boundary setbacks 3. Additional basement level to provide forty-two (42) car spaces to achieve compliance with Kogarah Development Control Plan (KDCP) 2013 car parking rates. 4. Fire stair from upper levels, has been amended on the ground floor to provide exit directly outside the building. 5. Letter boxes relocated to the entry area next to unit G.01. 6. Bulky waste room has been relocated to the western corner of the ground floor, next to princes Hwy. 7. An additional Communal open space area has been located on the ground floor level (northern side of the site) to comply with the minimum communal open space area required under the Apartment Design Guide (ADG). The ground floor communal open space incorporates seating and BBQ facilities. 8. Apartment G.01 has been redesigned and Apartment G.04 has been redesigned to be a one bedroom unit plus study to provide access from the lobby to the communal open space on ground floor. 9. Apartments G.03, G.04 and G.05 private open spaces have been reconfigured. 10. Third floor reconfigured to provide 2 x 2 bed units and 2 x 3 bed units. 11. Fourth and fifth levels reconfigured to provide increased front boundary setbacks. 12. The useable and trafficable area of the rooftop communal open space has been setback from the edge of the roof with 2.5m wide planter boxes. On the south-eastern side a rendered wall with decorative balustrade has been provided. 13. Amendments to the proposed waste storage areas for ongoing operational waste management. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [8] – [13] below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Kogarah Local Environmental Plan 2012 (KLEP 2012) are: 1. The KLEP 2012 was repealed by the Georges River Local Environmental Plan 2021 (GRLEP 2021) on 8 October 2021. However, under cl 1.8A of the GRLEP 2021, as the Development Application was made and not determined prior to the commencement of the GRLEP 2021, the Development Application is to be determined as though the GRLEP 2021 had not commenced. Therefore the KLEP 2012 is the relevant environmental planning instrument for the site. 2. The proposed development is characterised as a residential flat building which is permissible with consent within the R3 Medium Density Residential zone under KLEP and is consistent with the zone objectives, which are set out in the Land Use Table of KLEP as "to provide for the housing needs of the community within a medium density residential environment" and "to provide a variety of housing types within a medium density residential environment." 3. Consent for the demolition of the existing structures on the Site are sought as part of the Proposed Development pursuant to cl 2.7 of the KLEP. I am satisfied that demolition of the structures is acceptable provided the demolition is carried out in accordance with the relevant standards and demolition plan. 4. The maximum height of the Proposed Development, as amended, contravenes the building height development standard of 21m in cl 4.3 of KLEP. The extent of the breach is isolated to the central portion of the building and ranges from 390mm to 1.79m. 5. The parties agree that the written request seeking a variation to the height standard, prepared pursuant to cl 4.6 of the LEP is acceptable and should be upheld. For the reasons contained in the cl 4.6 variation request, I am satisfied that the applicant's written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the KLEP are therefore satisfied. 6. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of KLEP are therefore satisfied. 7. Clause 4.4 specifies a maximum floor space ratio of 2:1 for the Site. The proposed development has an FSR of 1.71:1, which complies with cl 4.4. 8. In relation to cl 6.1 of the KLEP concerning acid sulfate soils, the KLEP's Acid Sulfate Soils Map shows the Site as not being in any of the 5 classes of land within that clause. Therefore, I am satisfied that there is no need for the preparation of an acid sulfate soils management plan to be prepared and the objectives of that clause are met. 9. Under cl 6.2(3) of the KLEP, development consent is required for earthworks to ensure they will not have a detrimental impact, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent. In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl 6.2(3) before granting development consent. I am satisfied that the proposal will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items, or features of the surrounding land. 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. 2. A Preliminary Site Investigation was prepared by EI Australia dated 17 November 2021 to address the requirements of SEPP Resilience. Subject to the recommendations identified in Chapter 6 of the PSI, I am satisfied that cl 4.6 of SEPP Resilience has been considered and addressed. 3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX certificate dated 9 May 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument. 4. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) and associated Apartment Design Guide (ADG): 1. The design quality principles of SEPP 65 and the relevant provisions of the ADG have been taken into consideration, and the parties agree the proposed development demonstrates that adequate regard has been given to them. Clauses 28 and 30 of SEPP 65 have therefore been satisfied. 2. The Amended DA is supported by a SEPP 65 Design Verification Statement prepared by Loucas Architects (Design Verification Statement) in satisfaction of the requirement in cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The Design Verification Statement confirms that the proposed development has been designed to be consistent with the design quality principles of SEPP 65 and displays a high level of compliance with the provisions of the ADG. 1. I note that the parties agree that the design of the amended proposal is compatible with the desired future character of the local area and that the Proposed Development is of a bulk and scale that is commensurate with that envisaged by the prescribed standards and controls. Disposal of proceedings in accordance with the parties' decision 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' agreement. 2. The Court notes that: 1. Georges River Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application Number DA/2020/0462 filed with the Court on 26 November 2021 with the plans listed in Condition 1 of the Conditions of Consent provided as Annexure 'A' to this agreement. 2. The applicant uploaded the amended development application on the NSW planning portal on 12 May 2022, reference A1-476295 3. The applicant filed the amended application with the Court on 13 May 2022. 1. The Court orders that: 1. The appeal is upheld. 2. The request pursuant to clause 4.6 of Kogarah Local Environment Plan 2012 to vary the development standard for height of buildings contained in the clause 4.3 thereof, as prepared by BMA Urban dated 10 May 2022, is upheld. 3. Development Application No. DA/2020/0462 for demolition of existing structures and the construction of a six (6) storey residential flat building comprised of 25 apartments over two (2) levels of basement parking, landscaping works, site works and lot consolidation of Lot 1 in Deposited Plan 798485 and Lot 1 in Deposited Plan 126389 known as 176-178 Princes Highway Beverley Park, is approved subject to the conditions set out in Annexure "A" to this agreement. 4. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Application in the agreed amount of $18,000.00 within 28 days of the date of these orders. 5. Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) the parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in paragraph 1-4 above. ………………………. L Sheridan Acting Commissioner of the Court Annexure A.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: 19 July 2022