Land and Environment Court New South Wales Medium Neutral Citation: Bentayga Pty Ltd v Georges River Council [2023] NSWLEC 1708 Hearing dates: Conciliation conference on 10 July 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is directed to file the amended development application the subject of Order (4) below within 7 days of the date of this order. (2) Upon the filing of the amended development application in accordance with Order (1) above, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. (3) The appeal is upheld. (4) Development consent is granted to development application DA2022/0379 for demolition of the three existing single storey dwellings and associated structures, lot consolidation and construction of a 6-storey residential flat building containing 39 units over 3 levels of basement parking at 202-206 Princes Highway, Kogarah Bay, subject to the conditions in Annexure A. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Contaminated Land Management Act 1997 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment Regulation 2021, ss 27, 37(5), 38, Sch 6, s 3 Georges River Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 6.1, 6.2, 6.3, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12 Land and Environment Court Act 1979, s 34 Local Land Services Act 2013, s 60O Protection of the Environment Operations Act 1997 Roads Act 1993, s 138 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6; ss 6.6, 6.7, 6.8, 6.9, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2.122 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 19, 28, 30 Texts Cited: Apartment Design Guide Georges River Council, Community Engagement Strategy 2023 – 2033 Georges River Council, Tree Management Policy 2019 Category: Principal judgment Parties: Bentayga Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) A Rutherford (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/80478 Publication restriction: Nil JUDGMENT 1. These proceedings arise following the deemed refusal of development application 2022/0379 by Georges River Council which sought development consent for the demolition of existing structures, construction of a six-storey residential flat building containing 39 units, and excavation and construction of a 2-level basement structure containing 51 car parking spaces at 202-206 Princes Highway, Kogarah Bay. 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 10 July 2023. I presided over the conciliation conference. 3. During the conference the applicant agreed to the following amendments to the proposed development (amended application): 1. lowering of the building height to below the 21m height control; 2. provision of a ground level bin holding room and associated reconfiguration of the ground floor layout resulting in dwelling G02 being reduced from a 2-bedroom apartment to a studio apartment; 3. provision of wider deep soil zones along the eastern and western sides of the development; 4. provision of a third basement level to provide additional car parking spaces; and 5. amendments to the bulk, scale and mass of the development. 1. The Council is now satisfied that the amended application addresses the Council's contentions in the SOFC, subject to the imposition of the agreed conditions of consent. 2. The parties have forwarded to the Court an executed s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application. 3. 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. Jurisdictional preconditions 1. The jurisdictional preconditions that must be satisfied before this function can be exercised are identified in a joint jurisdictional submission accompanying the s34 agreement. After a consideration of the parties' written submissions, I am satisfied on the evidence before me that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard, I note the following matters. Owner's consent 1. Owner's consent was given to the Council for lodgement of the development application, see the owner's consent letter filed with the Class 1 Application (at Tab 1). Notification 1. The development application was advertised to surrounding properties by the Council between 2 February 2023 to 16 February 2023. No submissions were received. Roads Act 1993 (Roads Act) 1. Approval under s 138 of the Roads Act is required for the construction of a new driveway crossover from the site to the Princes Highway. 2. Pursuant to s 138(2) of the Roads Act, the development application was referred to Transport for NSW (TfNSW) and concurrence was received along with General Terms of Approval (GTAs) on 9 February 2023. The GTAs have been incorporated in the development consent at Condition 6 to 12. Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) 1. The development application was lodged on 17 January 2023. Pursuant to Sch 6, s 3 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the former repealed EPA Regulation 2000 does not apply to the application. State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) 1. The development application comprises a residential flat building pursuant to cl 4(1) and therefore is subject to the terms of the SEPP. 2. In accordance with cl 28 of SEPP 65: 1. the Council does not have a Design Review Panel constituted by the Minister pursuant to cl 19, accordingly there is no panel advice to which regard must be had; 2. the applicant has provided an updated statement addressing the design quality of the development in accordance with the design quality principles (Tab 2 of the amended application). 3. the applicant has provided an updated statement addressing the consistency with the Apartment Design Guide (ADG) (Tab 2 of the s34 agreement bundle). 1. Having regard to the above, I accept the parties' submission that the development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the ADG for the relevant design criteria, as required under cl 30(2) of SEPP 65. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) 1. The proposed development has frontage to, and vehicular access from, a classified road, being the Princes Highway. 2. I accept that the matters at s 2.119(2) are met, as: 1. there is no other practical, safe vehicular access to the site other than from the Princes Highway (s 2.119(2)(a)); 2. the safety, efficiency and ongoing operation of the Princes Highway will not be adversely affected by the development as a result of— 1. the design of the vehicular access to the land as the driveway is provided with appropriate sight lines, provides for 2-way traffic in and out of the site and has direct access to a lower frequency bus lane immediately adjacent to the site (s 2.119(2)(b)(i)); 2. the emission of smoke or dust from the development as these are not likely impacts associated with a residential flat building (s 2.119(2)(b)(ii)); 3. the nature, volume or frequency of vehicles using the classified road to gain access to the land will not be excessive and the development consolidates three existing driveways into a single driveway (s 2.119(2)(b)(iii)); and 4. the development includes measures, to ameliorate potential traffic noise and vehicle emissions arising from the adjacent classified road, as outlined in the Acoustic DA Assessment prepared by Acouras (Tab 5 of the Class 1 Application) (s 2.119(2)(c)). 1. In support of the above matters, see Traffic Impact Assessment prepared by TTPA dated September 2023 (Tab 3 of s34 agreement bundle). 2. Pursuant to s 2.120(3), the parties are satisfied, and I accept that the development will not be adversely affected by the impact of road noise or vibration on the development, as outlined in section 3.2 of the Acoustic DA Assessment prepared by Acouras (Tab 5 of the Class 1 Application). Pursuant to s 2.120(3): 1. all bedrooms are designed and treated such that they will not exceed 35dB(A) at any time between 10pm and 7am; and 2. all other areas of residential accommodation are designed and treated such that they will not exceed 40dB(a) at any time. 1. Pursuant to s 2.122 the development is traffic-generating development as it has frontage to a classified road and capacity for more than 50 vehicles (refer to Schedule 3 – Traffic Generating Development). Pursuant to s 2.122(4): 1. the development was referred to TfNSW on 25 January 2023 (s 2.122(4)(a)); 2. the GTAs from TfNSW have been incorporated into the conditions of consent (refer to Conditions 6 to 12) (s 2.122(4)(b)); 1. the parties are satisfied, and I accept that the accessibility of the site has been considered in accordance with the below (s 2.122(4)(b)(ii)): 1. the site is located in close proximity to public transport facilities and provides bicycle facilities which will limit the use of cars and improve the efficiency of people movement, in order to minimise impacts on freight (s 2.122(4)(b)(ii)(A)-(B)); 1. the development will not result in any adverse potential traffic safety impacts, road congestion or parking implications (s 2.122(4)(b)(iii)). 1. Pursuant to s 2.48, the development application was referred to Ausgrid, the electricity supply authority for the area in which the development is to be carried out, as it proposes development within close proximity to electricity transmission infrastructure. Ausgrid provided a response on 8 February 2023 raising no objections to the proposed development subject to the imposition of Conditions 14-17 of the consent. State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) 1. Chapter 4 of the Hazards SEPP aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment. 2. Pursuant to s 4.6(4), as the development proposes a residential use, the site history has been considered in a Preliminary Site Investigation (PSI) (Tab 6 of the Class 1 Application). 3. The PSI confirms (at pp 5-6): 1. the site has been used for residential purposes since 1903 and the existing dwellings have been present on the site since at least 1943; 2. the site is not subject to a statutory notice or licencing agreement under the Contaminated Land Management Act 1997 and the Protection of the Environment Operations Act 1997; 3. there is no evidence of aboveground or underground storage tanks on the site; and 4. there is a low risk for contamination to exist on the site. 1. Accordingly, the site can be made suitable for the proposed residential use. 2. The conditions of consent (Condition 1) require the recommendations in the PSI to be completed prior to the issue of a Construction Certificate in the ordinary course. 3. The parties are satisfied, and I accept that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Hazards SEPP. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) Chapter 2 Vegetation in non-rural areas 1. Chapter 2 of the Biodiversity SEPP details provisions regarding the preservation and management of vegetation in non-rural areas. 2. The development application seeks consent for the removal of 5 trees, however a permit or approval under Ch 2 of the Biodiversity SEPP is not required for the removal of the trees as the application seeks the authorisation of the tree removal as part of the development application, being of a kind authorised under s 60O of the Local Land Services Act 2013. 3. An Arboricultural Assessment has been prepared by CPS in relation to the proposed removal of these trees (Tab 7 of the Class 1 Application). 4. The Assessment provides that, with the exception of the Black Apple, all of the trees to be removed are exempt species under Section 2.4 – Exempt Works of the Georges River Council Tree Management Policy 2019. The Assessment considers that, due to its location within the building footprint, tree 3 (the Black Apple) requires removal. While the Black Apple has medium retention value, it is not a threatened species and is appropriate for removal considering the significant landscaping proposed on the site. 5. The Assessment concludes that the trees are not a threatened species and are appropriate for removal. The trees do not comprise Koala Habitat Vegetation and their removal will not trigger the biodiversity offset scheme. Chapter 6 Water Catchments 1. The site is located in the Georges River Water Catchment and is subject to the provisions in Ch 6 of the Biodiversity SEPP. 2. Pursuant to s 6.6, the parties are satisfied, and I accept that, as part of the assessment of the development application the matters in s 6.6(1) have been considered including the impact of the development on stormwater flows, quality, on site retention and ground water within the catchment. 3. Pursuant to s 6.6(2) the parties are satisfied, and I accept that the development: 1. results in water entering a natural waterbody that will be as close as possible to neutral or beneficial (s 6.6(2)(a)), and 2. minimises the impact on water flow in a natural waterbody (s 6.6(2)(b)). 1. Pursuant to s 6.7, the parties are satisfied, and I accept that, as part of the assessment of the development application the matters in s 6.7(1) have been considered including direct or cumulative impacts on terrestrial, aquatic or migratory animals or vegetation, erosion and sedimentation of waterways, impacts on coastal wetlands and littoral rainforests, rehabilitation measures and the overall impact on the development on waterways. 2. Pursuant to s 6.7(2) the parties are satisfied, and I accept that the development: 1. minimises direct, indirect or cumulative adverse impacts on terrestrial, aquatic or migratory animals or vegetation to the extent necessary for the carrying out of the development (s 6.7(2)(a)); 2. will not result in a direct, indirect or cumulative adverse impact on aquatic reserves (s 6.7(2)(b)); 3. minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody (s 6.7(2)(d)); and 4. minimises adverse impacts on wetlands that are not in the coastal wetlands and littoral rainforests area (s 6.7(2)(e)). 1. Pursuant to s 6.8(2), the parties are satisfied, and I accept that the development will not: 1. result in a release of pollutants that may have an adverse impact on the water quality of a natural waterbody (s 6.8(2)(a)); and 2. result in an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems (s 6.8(2)(b)). 1. Pursuant to s 6.9, the parties are satisfied, and I accept that, as part of the assessment of the development application the matters in s 6.9(1) have been considered including the likely impacts of the development on the recreational land uses in the catchment and public access to and around foreshores. 2. Pursuant to s 6.9(2) the parties are satisfied, and I accept that the development will: 1. maintain or improve public access to and from natural waterbodies for recreational purposes, including fishing, swimming and boating, without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation; 2. not result in a detrimental impact on new or existing points of public access between natural waterbodies and the site; and 3. will not impact on land forming part of the foreshore of a natural waterbody. 1. Pursuant to s 6.10 the development is not likely to result in an adverse environmental impact on downstream Councils. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The development application is for a residential building with at least 1 bedroom and therefore is a BASIX building and BASIX development. The development is not BASIX-excluded development. 2. An amended BASIX Certificate has been provided by the applicant to accompany the further amended application to satisfy the requirement in ss 27 and 37(5) of the EPA Regulation 2021 (Tab 7 of the s34 agreement bundle). Georges River Local Environmental Plan 2021 (Georges River LEP 2021) Clause 2.3 Land Zone 1. The site is zoned R4 – High Density Residential. The proposed development is characterised as a 'residential flat building', which is permissible with consent within the R4 zone. Pursuant to cl 2.3 the consent authority may lawfully approve the development application having regard to the objectives of the zone which include: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To enable other land uses that contribute to the vibrancy of the neighbourhood while ensuring that business centres remain the focus for business and retail activity. • To encourage development that maximises public transport patronage and promotes walking and cycling. Clause 2.7 Demolition requires development consent 1. The proposed development seeks consent for demolition (refer to page 4 of the Statement of Environmental Effects prepared by DMPS (Tab 3 of the Class 1 Application)). Clause 4.3 Height of buildings 1. The maximum building height for the site is 21 m. The highest point of the proposed development is less than 21 m which is compliant with the building height control (refer to Drawing No. A800 at Tab 10 of the s34 agreement bundle). Clause 4.4 Floor space ratio (FSR) 1. The site has a maximum FSR control of 2:1. The proposed development has a maximum FSR of 1.89:1 and complies with the requirement under cl 4.4 (refer to Drawing A500-A505 at Tab 10 of the s34 agreement bundle). 2. Clauses 5.10 (heritage), 5.21 (flood planning), 5.23 (public bushland) are not relevant to the development application. Clause 6.1 Acid sulfate soils 1. The site is identified as being affected by Class 5 acid sulfate soils. However, no works are contemplated within 500 m of adjacent Class 1, 2, 3 or 4 land that is below 5 m AHD, as the proposed development does not propose any works below 5 m AHD. Clause 6.2 Earthworks 1. The proposed development seeks consent for earthworks, including excavation and cut and fill across the site. The proposed development is consistent with the matters to be addresses pursuant to cl 6.2(3), as outlined below: 1. the proposed development is designed with stormwater collection, retention and discharge infrastructure (refer to Drawing SW200, SW201, SW300 and SW301 of the Stormwater plans at Tab 8 of the s34 agreement bundle) to ensure that it does not result in a disruption or detrimental impact on stormwater drainage patterns or soil stability, as outlined in the Geotechnical Investigation prepared by EI Australia (Tab 8 of the Class 1 Application) (cl 6.2(3)(a)); 2. the earthworks will facilitate the proposed efficient use of the site with basement car parking and facilitate a future residential development on the site (cl 6.2(3)(b)); 3. the fill to be excavated is not expected to contain contaminated material as the site has been used historically for residential uses (cl 6.2(3)(c)); 4. the proposed development is not expected to result in an adverse impact on the amenity or structural integrity of adjoining properties as outlined in the Geotechnical Investigation prepared by EI Australia (Tab 8 of the Class 1 Application) (cl 6.2(3)(d)); 5. excavated material will be reused on site where appropriate and otherwise disposed of at an appropriate off-site facility (cl 6.2(3)(e)); 6. the site is not identified as a heritage item and therefore the likelihood of relics on the site is considered to be low (cl 6.2(3)(f)); 7. the proposed development and stormwater management system are designed to drain water into an on-site detention tank and treat water before discharge into the existing council infrastructure as outlined in the Stormwater plans prepared by SGC (Tab 8 of the s34 agreement bundle). These measures are considered appropriate to avoid, minimise and mitigate the impacts of the development (cl 6.2(3)(g)-(h)); and 8. the site is not identified as a heritage item and therefore the likelihood of disturbing heritage items or archaeological relics is considered to be low (cl 6.2(3)(i)). Clause 6.3 Stormwater management 1. Stormwater plans have been provided at Tab 8 of the s34 agreement bundle. The proposed development is consistent with the matters to be addressed pursuant to cl 6.3(2), as outlined below: 1. maximises the use of water permeable surfaces by providing large areas of deep soil and using porous material in the areas of communal open space (refer to SW202 in the Stormwater Plans at Tab 8 of the s34 agreement bundle) (cl 6.3(2)(a)); 2. includes on-site water detention and filtration infrastructure that drains to existing Council stormwater infrastructure (cl 6.3(2)(b)); 3. avoids impact of the stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system through the use of water permeable surfaces, on site collection and detention and discharge to existing infrastructure (cl 6.3(2)(c)); and 4. minimises impact on public drainage systems through on-site detention. Clause 6.7 Airspace operations 1. Clause 6.7 relates to airspace operations surrounding the Sydney (Kingsford Smith) Airport. The proposed development is consistent with the matters to be addressed in cl 6.7(2), as outlined below: 1. the development application was referred to the Sydney Airport Corporation (the relevant Commonwealth Body) and a response, confirming that the authority had no objection to the proposed development, was received on 1 November 2023 (cl 6.7(2)(a)); and 2. the Sydney Airport Corporation has confirmed that the proposed development will not penetrate the Limitation or Operation Surface (cl 6.7(2)(b) and cl 6.7(3)). Clause 6.8 Development in areas subject to aircraft noise 1. Clause 6.8 does not apply as the development is not located within the Sydney (Kingsford Smith) Airport ANEF Contour of 20 of higher. Clause 6.9 Essential services 1. The required services identified in cl 6.9 are addressed below: 1. the survey plan prepared by Strata Surv indicates water supply, sewage points, electricity transmission and telecommunications supply to the site (refer to Tab 17 of the Class 1 Application) (cl 6.9(a)-(d)); and 2. adequate arrangements for stormwater drainage infrastructure are illustrated in the amended Stormwater plans at Tab 8 of the s34 agreement bundle (cl 6.9(e)); and 3. the amended Traffic and Parking Assessment prepared by TTPA identifies that suitable vehicular access to the site is provided (refer to Tab 3 of the s34 agreement bundle) (cl 6.9(f)). Clause 6.10 Design excellence 1. Clause 6.10 does not apply to the site. Clause 6.11 Environmental sustainability 1. Clause 6.11 relates to environmental sustainability for new buildings with a GFA in excess of 1,500m2. The development application complies with the BASIX and BCA requirements with regard to water, energy, thermal comfort and materiality and is consistent with the matters to be considered in cl 6.11(3), as outlined below: * the amended BASIX Certificate dated 13 November 2023 (Tab 7 of the s34 agreement bundle) identifies measures for the reduction in water and energy demand and efficiency (cl 6.11(3)(a) and (b)); * the amended Architectural plans (Tab 10 of the s34 agreement bundle) demonstrate adequate natural and solar access is achieved (cl 6.11(3)(c)); * the amended BASIX Certificate dated 13 November 2023 (Tab 7 of the s34 agreement bundle) identifies measures for the minimisation of surfaces and materials that absorb and retain heat and the use of reflective materials (cl 6.11(3)(d)); * the development will incorporate the use of recycled materials where possible and will recycle materials that are removed from the site where possible (cl 6.11(3)(e)); and * the development provides for transport initiatives including cycle facilities (refer to A097, A098 and A099 of the Architectural Plans provided in the s34 agreement bundle) (cl 6.11(3)(f)). Clause 6.12 Landscaped areas in certain residential and conservation zones 1. Pursuant to cl 6.12(3), this clause does not apply to development that is subject to SEPP 65. Conclusion 1. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties' decision. 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: 1. That Georges River Council, as the relevant consent authority, pursuant to s 38(1) of the EPA Regulation 2021, has approved the applicant's application to amend development application DA2022/0379 and rely on the plans and documents (amended development application) specified below: Plan Name Drawing number Revision Date Prepared by Amended Architectural Plans Site plan A008 E September 2023 Tony Owen Partners Site analysis A008 E September 2023 Tony Owen Partners Basement Level 3 plan A097 F November 2023 Tony Owen Partners Basement Level 2 plan A098 F November 2023 Tony Owen Partners Basement Level 1 plan A099 F November 2023 Tony Owen Partners Ground Floor plan A100 F November 2023 Tony Owen Partners L1 Floor Plan A101 D July 2023 Tony Owen Partners L2 Floor Plan A102 D July 2023 Tony Owen Partners L3 Floor Plan A103 D July 2023 Tony Owen Partners L4 Floor Plan A104 D July 2023 Tony Owen Partners L5 Floor Plan A105 D July 2023 Tony Owen Partners Roof Plan A106 E September 2023 Tony Owen Partners Elevation North-West A300 D July 2023 Tony Owen Partners Elevation South-East A301 D July 2023 Tony Owen Partners Elevation North-East A302 D July 2023 Tony Owen Partners Elevation South-West A303 D July 2023 Tony Owen Partners Section AA A200 D July 2023 Tony Owen Partners Section BB A201 D July 2023 Tony Owen Partners Lobby Space Section A-A A200 D July 2023 Tony Owen Partners Perspective 1 A702 D July 2023 Tony Owen Partners Fly Through Screen Shots A702 D July 2023 Tony Owen Partners Ramp Section A302 E September 2023 Tony Owen Partners COS Diagram A604 E September 2023 Tony Owen Partners Deep Soil Diagram A606 E September 2023 Tony Owen Partners Height Plane Diagram A800 D July 2023 Tony Owen Partners Elevation Shadow West Façade A710 D July 2023 Tony Owen Partners Elevation Shadow West Façade A711 D July 2023 Tony Owen Partners Elevation Shadow South Façade A712 D July 2023 Tony Owen Partners Elevation Shadow South Façade A713 D July 2023 Tony Owen Partners Elevation Shadow North Façade A714 D July 2023 Tony Owen Partners Elevation Shadow North Façade A715 D July 2023 Tony Owen Partners Ground Floor Ventilation A607 E September 2023 Tony Owen Partners L1 Ventilation A608 D July 2023 Tony Owen Partners L2 Ventilation A609 D July 2023 Tony Owen Partners L3 Ventilation A610 D July 2023 Tony Owen Partners L4 Ventilation A611 D July 2023 Tony Owen Partners L5 Ventilation A612 D July 2023 Tony Owen Partners Ground Floor Solar A613 E September 2023 Tony Owen Partners L1 Solar A614 D July 2023 Tony Owen Partners L2 Solar A615 D July 2023 Tony Owen Partners L3 Solar A616 D July 2023 Tony Owen Partners L5 Solar A5618 D July 2023 Tony Owen Partners L5 Solar A5618 D July 2023 Tony Owen Partners GF FSA A500 E September 2023 Tony Owen Partners L1 FSA A501 D July 2023 Tony Owen Partners L2 FSA A502 D July 2023 Tony Owen Partners L3 FSA A503 D July 2023 Tony Owen Partners L4 FSA A504 D July 2023 Tony Owen Partners L5 FSA A505 D July 2023 Tony Owen Partners External Finishes Schedule A511 D July 2023 Tony Owen Partners Schedule of Areas 1047 - 14 November 2023 Tony Owen Partners Amended Stormwater Plans Cover Sheet SW100 C 17 October 2023 SGC Stormwater Concept Design – Basement Level 3 Plan SW200 C 17 October 2023 SGC Stormwater Concept Design – Ground Floor Plan Sheet 1 of 2 SW201 C 17 October 2023 SGC Stormwater Concept Design – Ground Floor Plan Sheet 2 of 2 SW202 C 17 October 2023 SGC Stormwater Concept Design – Roof Plan SW203 C 17 October 2023 SGC Stormwater Concept Design – Details Sheet 1 of 2 SW300 C 17 October 2023 SGC Stormwater Concept Design – Details Sheet 2 of 2 SW301 C 17 October 2023 SGC Erosion and sediment control – Plan and Details SW400 C 17 October 2023 SGC Amended Landscape Plans Cover Sheet F124_LP_00 F 13 October 2023 CPS Landscape Concept Plan F124_LP_01 F 13 October 2023 CPS Landscape Cross Sections F124_LP_02 F 13 October 2023 CPS Landscape Planting Plan F124_LP_03 F 13 October 2023 CPS Deep Soil Diagram F124_LP_04 F 13 October 2023 CPS Landscape Character Imagery F124_LP_05 F 13 October 2023 CPS Notes, Specifications and Details F124_LP_06 F 13 October 2023 CPS Reports Schedule of Amendments prepared by Tony Owen Partners dated 25 August 2023 SEPP 65 Design Verification Statement prepared by Tony Owen Partners dated August 2023 Amended Operational Waste Management Plan – Report No.3949 revision F prepared by Elephants Foot dated 21 July 2023 Amended Traffic and Parking Assessment prepared by Transport and Traffic Planning Associates – Ref: 22055 issue E dated September 2023 and bus zone swept path diagram Crime Prevention Through Environmental Design Report Revision A prepared by Mecone dated 31 July 2023 Stormwater Management Report issue B prepared by SGC dated 17 October 2023 BASIX Certificate – 1321848M_02 prepared by VIPAC dated 13 November 2023 1. The Court orders: 1. The applicant is directed to file the amended development application the subject of Order (4) below within 7 days of the date of this order. 2. Upon the filing of the amended application in accordance with Order (1) above, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent that have been thrown away as a result of the amendment of the development application, as agreed or assessed. 3. The appeal is upheld. 4. Development consent is granted to development application DA2022/0379 for demolition of the three existing single storey dwellings and associated structures, lot consolidation and construction of a 6-storey residential flat building containing 39 units over 3 levels of basement parking at 202-206 Princes Highway, Kogarah Bay, subject to the conditions in Annexure A. …………….. S Dixon Senior Commissioner of the Court Annexure A (512997, 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: 24 November 2023