Land and Environment Court New South Wales Medium Neutral Citation: Lateral Estate Pty Ltd v Georges River Council [2022] NSWLEC 1370 Hearing dates: Conciliation Conference on 8, 16 June 2022 Date of orders: 14 July 2022 Decision date: 14 July 2022 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The appeal is upheld. (2) Modification application MOD2022/0013 is approved and development consent DA2018/0139 granted by the Court on 6 August 2019 for the demolition of existing structures and the erection of a thirteen storey mixed use development on the land described as Lots 1 and 2 DP 1257940 known as 32-38 Montgomery St Kogarah is modified in the terms set out in Annexure A. (3) As a consequence of the modification, development consent DA2018/0139 is subject to the consolidated, modified conditions of consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9, 8.10 Environmental Planning and Assessment Regulation 2000, cll 115, 121B Environmental Planning and Assessment Regulation 2021, Sch 6 cl 3 Land and Environment Court Act 1979, s 34 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366 Category: Principal judgment Parties: Lateral Estate Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: A Gadiel (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent) File Number(s): 2022/62033 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal relates to the Applicant's modification application MOD2022/0013 (Modification Application) for the modification of development consent DA2018/0139 granted by the Court on 6 August 2019: Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366 (Consent). 2. The Consent relates to a thirteen storey mixed use development on the land described as Lots 1 and 2 DP 1257940 known as 32-38 Montgomery St, Kogarah (Site). 3. The Modification Application seeks to make various changes to the approved building. The Modification Application was amended on 14 June 2022 with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made but not finally determined before that date: 2021 Regulation, Sch 6 cl 3. The Modification Application was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the Modification Application. 4. As amended, the changes proposed by the Modification Application may be summarised as follows: * Level 2 – delete skylights opposite lift entry; * All levels – replace battens in corridors with ceiling; * Rooftop communal open space – construct a full height glass opposite the lift lobby; * New pool and cabana; * Changes to the horizontal façade joint location on the north-western elevation; * Reducing the balcony balustrade height for units 201, 202, 203, 204 and 205 * Apartment 203 – amend lower level layout; * Internal corridors – modify planter boxes; * Apartments 203, 207, 208 and 209 – minor internal and external layout amendments; * Other minor alterations 'to create consistency with the construction certification plans' on Plan DA104, 105, DA207 and over numerous levels – parapet balustrade raised to RL 66.12 to allow for superior waterproofing. 1. The Modification Application also seeks to amend some of the conditions of the Consent. These amendments are described in the Statement of Facts and Contentions as follows: * Condition 1 – updated drawing references, this includes architectural drawings and a new set of landscape plans; * Condition 13 – updated to refer to Flysafe concurrence (reduction in approved height from RL 69.61 to RL 69.59); * Conditions 54 and 81 – amended to reflect amended landscape plans and to delete reference to "Forty Three (43)"; * Condition 54A (Street Tree Planting by Council) – amend condition (a) of condition under condition 54 (now numbered 54A) to refer to three (3) new street trees, not four (4) new street trees as shown on the approved landscape plan referred to in Condition 1; and * Condition 98A – to be deleted; 1. The Modification Application was made to the Council on 20 January 2022. When the Modification Application had not been determined by the Council within the period after which it was taken to have been refused, on 3 March 2022 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.56 of the EPA Act. 2. On 8 June 2022 the Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which took place on that day. 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 would be acceptable to the parties. The signed agreement was filed on 15 June 2022 and was supported by a Jurisdictional Statement provided by the parties on the same date. The agreement involves the Court modifying the Consent in the way described in [4] and [5] above. 4. Under 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. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The appeal was brought pursuant to s 8.9 and was made within the time required by s 8.10 of the EPA Act. 2. The Modification Application is made by the Applicant with the consent of the owner of the Site in accordance with s 4.56(1) of the EPA Act and cl 115(1)(h) of the EPA Regulation. 3. I am satisfied that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent was modified, this being the test required by s 4.56(1)(a) of the EPA Act. An Amended Statement of Environmental Effects prepared by Avenue Planning and dated 13 May 2022 accompanies the Modification Application. That Statement indicates that the land use remains the same as originally approved as do all numerical aspects of the proposal such as floor space ratio, building height number of storeys, car parking unit mix and building setbacks. A comparison between the originally approved development and the development as proposed to be modified demonstrates that there is no radical transformation of the development, and the essence of the development remains the same: Arrage v Inner West Council [2019] NSWLEC 85 at [27]. 4. The notification requirements of s 4.56(1)(b) of the EPA Act have been met. The Modification Application was placed on neighbour notification between 17 February and 3 March 2022 and no submissions were received. 5. I am also satisfied that the notification requirements of s 4.56(1)(c) have been met. That provision requires the consent authority to notify, or make reasonable attempts to notify, each person who made a submission in respect of the relevant development application the subject of the Consent of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person. The parties have informed the Court that the Modification Application was notified to the objectors to DA 2018/0139 between 17 June 2022 and 1 July 2022 and that no submissions were received. 1. As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act. 3. The Court notes: 1. That the Respondent as the relevant consent authority has agreed, in accordance with clause 121B(1) of the EPA Regulation, to the Applicant amending the Modification Application. 2. That the Respondent has uploaded or verified the amended application on the NSW planning portal on 14 June 2022. 3. That the Applicant has subsequently filed the amended application with the Court on 15 June 2022. 1. The Court orders that: 1. The appeal is upheld. 2. Modification application MOD2022/0013 is approved and development consent DA2018/0139 granted by the Court on 6 August 2019 for the demolition of existing structures and the erection of a thirteen storey mixed use development on the land described as Lots 1 and 2 DP 1257940 known as 32-38 Montgomery St Kogarah is modified in the terms set out in Annexure A. As a consequence of the modification, development consent DA2018/0139 is subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (223360, pdf) Annexure B (492901, 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: 14 July 2022