Land and Environment Court New South Wales Medium Neutral Citation: Ma v Georges River Council [2023] NSWLEC 1085 Hearing dates: Conciliation conference on 24 February 2023 Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is to pay the Council's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. (2) The Appeal is upheld. (3) Development consent is granted to Development Application No. DA2021/0401, as amended, for demolition works, subdivision of land into two (2) lots, construction of two (2) two storey detached dwellings with a basement and two (2) secondary dwellings, swimming pool and associated works on land legally described as Lot 16 in DP662877 and known as 15-17 Greenbank Street, Hurstville NSW 2220, subject to the conditions at Annexure A. Catchwords: APPEAL – development application – Torrens title subdivision of land into two lots and construction of dwelling houses and secondary dwellings – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1 Georges River Local Environmental Plan 2021 cl 1.8A Kogarah Local Environmental Plan 2012 cll 2.6, 5.10, 6.2 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021 s 6.65, Ch 11, Pt 11.2 State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6 Category: Principal judgment Parties: Carol Li Ma (First Applicant) De Yong Chen (Second Applicant) Georges River Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicants) J Fan (Solicitor) (Respondent) Solicitors: Macpherson Kelley (Applicants) Georges River Council (Respondent) File Number(s): 2022/254306 Publication restriction: No JUDGMENT 1. COMMISSIONER: This appeal concerns a development application for the subdivision of land and the construction of a two-storey detached dwelling with a basement level and a secondary dwelling on each proposed lot, at 15-17 Greenbank Street, Hurstville. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 February 2023. 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 was acceptable to the parties. That agreement reflects the signed agreement filed on 22 February 2023, and was reached following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendments to the development application include, inter alia, the reduction in the number of lots proposed to be created by the subdivision from three to two, the corresponding reduction in the number of dwellings and secondary dwellings that are proposed, and changes to the design of the built form so that the dwellings present as two-storeys. As a result of the amendments, the proposed development is for the Torrens title subdivision of the site into two lots, and the construction of a dwelling house and secondary dwelling on each of the two lots. The reduction in the number of lots created by the subdivision and the number of dwelling houses allows the proposed development to retain additional trees as well as to achieve an outcome that is consistent with the streetscape character of the heritage conservation area in which the site is located. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the background to the development application, how each of the contentions raised by the Council has been resolved by amendments to the development application, and each of the jurisdictional matters about which the Court must be satisfied. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R2 Low Density Residential pursuant to the Kogarah Local Environmental Plan 2012 (KLEP). The Georges River Local Environmental Plan 2021 commenced on 8 October 2021 but contains a savings provision in cl 1.8A such that the KLEP continues to apply to the development application. Development for the purpose of a dwelling house is permissible with development consent in the R2 zone pursuant to the KLEP, and subdivision is permissible with consent pursuant to cl 2.6. * The proposed development complies with the development standards established by the KLEP for the maximum height of buildings, maximum floor space ratio and minimum subdivision lot size. * The site on which the development is proposed is located within the O'Brien's Estate Heritage Conservation Area. I am satisfied, based on the comments in the Jurisdictional Statement, the Statement of Heritage Impact that accompanied the Class 1 Application, the retention of the existing sandstone in the front fencing and the design changes to better achieve consistency in the streetscape, that the development will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the KLEP. * The development application includes earthworks for the provision of the basement level. Based on the comments in the Jurisdictional Statement, the Geotechnical Investigation dated September 2021, and the proposed conditions of consent, I have considered the matters set out in cl 6.2(3) of the KLEP. * The site is located within the area identified as the Georges River Catchment pursuant to Ch 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which continues to apply to the development pursuant to the savings provision in s 6.65 of the SEPP B&C. Based on the Statement of Environmental Effects dated 13 September 2022, the Geotechnical Investigation dated September 2021 and the Stormwater Management plans, I have considered the matters and principles contained in Pt 11.2 of the SEPP B&C. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of a dwelling house, it is unlikely to be contaminated. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000. * The development application was notified for a period of 28 days from 27 October 2021 to 24 November 2021, and 16 submissions were received. I have considered the issues raised in those submissions. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Council agrees to the Applicant amending Development Application No. DA2021/0401, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 , in accordance with the following amended plans and documents described below: Drawing No and Revision Title Prepared by Date Subdivision Plan 1 DA022 Issue A Subdivision Plan Zhinar Architects 30 January 2023 Architectural Plans 2 DA001 Issue Cover Page Zhinar Architects DA002 Issue H Development Summary 13 February 2023 DA003 Issue F Contextual Analysis 13 January 2023 DA004 Issue F Site Analysis 13 January 2023 DA005 Issue H Site & Demolition Plan 13 February 2023 DA006 Issue H Lower Ground Level 13 February 2023 DA007 Issue I Ground Level 13 February 2023 DA008 Issue H Level 1 30 January 2023 DA009 Issue H Roof Plan 30 January 2023 DA010 Issue F Street Elevations (South) 13 February 2023 DA011 Issue G Lot 15 Elevations 30 January 2023 DA012 Issue H Lot 17 Elevations 13 February 2023 DA013 Issue G Cross Section 13 February 2023 DA014 Issue H Material Schedule 13 February 2023 DA015 Issue C Material Schedule 13 February 2023 DA016 Issue B Lower Ground Garage Detail 13 January 2023 DA017 Issue E Shadow Diagrams 13 January 2023 DA018 Issue F Perspectives 13 February 2023 DA019 Issue F Perspective 13 February 2023 DA020 Issue F Perspective 13 February 2023 DA021 Issue G Area Calculation Plan 13 February 2023 Landscape Plan 3 Drawing No. LPS34 23 – 116/1 Revision H Hardscape Plan Conzept Landscape Architects 13 February 2023 Drawing No. LPS34 23 – 116/2 Revision H Landscape Plan Dwelling A 13 February 2023 Drawing No. LPS34 23 – 116/3 Revision H Landscape Plan Dwelling B 13 February 2023 Drawing No. LPS34 23 – 116/4 Revision H Details 13 February 2023 Drawing No. LPS34 23 – 116/5 Revision H Details 13 February 2023 Drawing No. LPS34 23 – 116/6 Revision H Specifications 13 February 2023 Stormwater Concept Plans 4 Drawing No. 200305-SW - D1 Revision H Details, Notes and Legend Quantum 13 February 2023 Engineers Drawing No. 200305-SW - D2 Revision H Site/Lower Ground Floor Plan 13 February 2023 Drawing No. 200305-SW - D3 Revision H Site/Ground Floor Plan 13 February 2023 Drawing No. 200305-SW - D4 Revision H First Floor Plan 13 February 2023 Drawing No. 200305-SW - D5 Revision H Roof Plan 13 February 2023 Drawing No. 200305-SW - D6 Revision H OSD Details – No.15 13 February 2023 Drawing No. 200305-SW – D7 Revision H OSD Details – No.17 13 February 2023 Drawing No. 200305-SW – D8 Revision H Sediment Control Plan 13 February 2023 Drawing No. 200305-SW – D9 Revision H Stormwater & Sediment Control Details 13 February 2023 Reports / Documents 5 Arboricultural Impact Assessment Hugh the Arborist 17-31 January 2023 6 Addendum Arboricultural Impact Assessment 13 February 2023 7 Arborist Response to Review of Amended Material Hugh the Arborist 17 January 2023 8 Basix Certificate Number 1368260M Gradwell Consulting 31 January 2023 9 NatHERS Certificate No. 0006479660 Gradwell Consulting 31 January 2023 1. The Court orders that: 1. The Applicant is to pay the Council's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 2. The Appeal is upheld. 3. Development consent is granted to Development Application No. DA2021/0401, as amended, for demolition works, subdivision of land into two (2) lots, construction of two (2) two storey detached dwellings with a basement and two (2) secondary dwellings, swimming pool and associated works on land legally described as Lot 16 in DP662877 and known as 15-17 Greenbank Street, Hurstville NSW 2220, subject to the conditions at Annexure A. ………………………. J Gray Commissioner of the Court 22.254306 Annexure A (362600, 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: 28 February 2023