Land and Environment Court New South Wales Medium Neutral Citation: Kai Tian Group Kogarah Pty Ltd v Georges River Council [2024] NSWLEC 1180 Hearing dates: 18 March 2024 Date of orders: 16 April 2024 Decision date: 16 April 2024 Jurisdiction: Class 1 Before: Bish C Decision: The orders of the Court are: (1) The amended written request under clause 4.6 of the Georges River Local Environmental Plan 2021, prepared by Planning Ingenuity, dated 6 March 2024, seeking a variation to the development standard for height of buildings under clause 4.3, is upheld. (2) The appeal is upheld. (3) Development Application DA2023/0015, as amended, seeks alterations and additions to an approved 11-storey residential flat building with basement parking, landscaping and associated civil works on Lot 71 Section B Deposited Plan (DP) 383744, Lot 70 Section B DP 1397, Lot B DP 398263 and Lot A DP 398263, also known as 18, 20, 22 and 24A Victoria Street, Kogarah, respectively, is determined by the grant of consent, subject to conditions in Annexure A. (4) The exhibits are returned. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building –exceedance in height development standard – cl 4.6 written request to vary standard – provision of adequate communal open space Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.12, 4.15,4.16, 4.17, 8.15 Land and Environment Court Act 1979, s 39 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Georges River Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 5.10, 6.2, 6.3, 6.7 6.10, Sch 5 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Housing) 2021, Sh 9, Ch 4, ss 147, 148, 149, Sch 7A, Sch 9 State Environmental Planning Policy Amendment (Housing) 2024 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.120 Cases Cited: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 Wehbe v Pittwater Council (2007) 156 LGERA 446; (2007) NSWLEC 827 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide 2015 Georges River Development Control Plan 2021 Category: Principal judgment Parties: Kai Tian Group Kogarah Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: J Reid (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council File Number(s): 2023/103213 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA2023/0015 by Georges River Council (the Council), which seeks alterations and additions to an approved 11-storey residential flat building (RFB) with basement parking, landscaping and associated civil works on Lot 71 Section B Deposited Plan (DP) 383744, Lot 70 Section B DP 1397, Lot B DP 398263 and Lot A DP 398263, also known as 18, 20, 22 and 24A Victoria Street, Kogarah, respectively (hereafter the site). 2. For the reasons explained below, I am satisfied that Development Application DA2023/0015 (hereafter the application), as amended, addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent. Background 1. The application was made pursuant to s 4.12(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and lodged on the NSW Planning Portal on 8 February 2023. In addition to being internally reviewed by Council, the original application was notified to residents between 23 February to 9 March 2023. 2. The original application was externally referred to Ausgrid, Sydney Airport Corporation and Department of Infrastructure, Transport, Regional Development and Communication, whose positive response is provided in Exhibit 4, and where appropriate, general terms of approval (GTA's) are adopted in the agreed conditions of consent (Exhibit 5). 3. The application seeks to alter an approved RFB on the site, made under Consent DA2017/0597, which was granted by the Land and Environment Court of NSW (LEC) on 25 May 2021, after a conciliation conference. The Council refers to this consent as the 'Base Consent', which is adopted in the judgment. 4. On 6 December 2023 and 12 March 2024, the Court, pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act), and acting as the consent authority, pursuant to s 38(1) of the Environment Planning and Assessment Regulation 2021 (EPA Reg), granted leave to amend the application in response to the applicant's Notice of Motion's (NoM), without opposition of the respondent. 5. The hearing commenced as a site view, and there were no residents in attendance. Proposed development 1. The application, as amended and before the Court under appeal, is described as relating to: 1. An additional two residential units on level 10 to the approved 11- storey building, increasing the unit yield of the RFB to 52 residential units; 2. Excavation of an additional half level basement, increasing parking and storage for 58 car spaces, and 3. Amendment of the area for communal open spaces (COS) at ground level (shown at level 0) and rooftop (shown at level 10) to a total of 483 m2, and separating the COS on the rooftop into two discrete spaces. 1. The Base Consent relates to a 11-storey RFB with 50 residential apartments, three level basement parking for 50 car spaces, with rooftop and at ground level COS's. The contentions before the Court in consideration of the (amended) application 1. At the commencement of the hearing, the respondent identified the primary contentions remaining, as described in the Amended Statement of Facts and Contentions (ASoFC, Exhibit 1) being: * Insufficient demonstration of sufficient environmental planning grounds described in a cl 4.6 written request seeking to vary the height of buildings development standard (referred to as Contention 1 in the ASoFC); * Unsatisfactory bulk and scale with respect to the presentation to streetscape and public domain (referred to as Contention 2 in the ASoFC); and * Poor amenity outcomes, due to fragmentation of the COS area on the rooftop and ineffective resident usability of the ground floor level CoS (referred to as Contention 3 in the ASoFC). 1. Based on the amendments made to the application, agreed (draft) conditions of consent and expert evidence, the Council considers that the other contentions, as raised in the ASoFC, are resolved. 2. With respect to the merit and jurisdictional consideration of the application, the Court must form its own opinion of satisfaction based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 11. 3. Consistent with the decision of Preston CJ in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [5], and as required in s 4.15(1) of the EPA Act, the focus of my consideration relates to the matters of relevance to the proposed development, which is the subject of the application, and as described above. Experts 1. The Court was provided with written evidence from the following experts: * Planning and urban design – Messrs David Waghorn, Peter Smith and Alan Caogan, and Ms Heather Warton. 1. By agreement of the parties and concurrence of the Court, these listed experts were not called to give oral evidence based on their written evidence in the joint expert reports (Exhibits 2 and 3), supporting documents to the amended application and agreed draft conditions of consent. 2. Further to the evidence of the experts, the parties provided oral submission in summary of the issues relevant to the amended application, provided by Mr O'Gorman-Hughes for the respondent, and Ms Reid, for the applicant. The Site 1. The site is an irregular heptagon shape, located adjacent to and surrounded by existing 10 to 12 storey RFB's located along Victoria Street, Stanley Street and Stanley Lane/Regent Street. Directly to the north of the site is St George Girls High School and a car park associated with Kogarah Oval. 2. The site currently contains three single storey residential dwellings, which are approved to be demolished, to make way for the approved RFB under the Base Consent. 3. The site fronts to Victoria Street, forming the north-western boundary, for a length of 40.155m. The other (six) boundaries adjoin existing RFB's and Stanley Lane at variable lengths. The total area of the site is 1320m2. Relevant Planning Controls 1. The requirements of s 4.15(1) of the EPA Act are a relevant consideration for the Court to grant consent to the application. The Court is required to consider all relevant jurisdictional requirements. 2. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners relating to the amended application and the site. All proposed works are explained as being contained within the site boundaries. The relevant owners consent is provided in Exhibit B. 3. Pursuant to cl 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience), the site must be deemed capable of being made suitable for the proposed (residential) use, prior to a grant of consent. I am satisfied that the applicant has provided sufficient evidence, together with the agreed conditions of consent, to address the relevant requirements of s 4.6 of the SEPP Resilience. The Council confirms that the site has a continued history of residential use. 4. Assessment of the amended application requires consideration of the relevant provisions as set out in the State Environmental Planning Policy (Housing) 2021 (SEPP Housing). It is accepted that the State Environmental Planning Policy Amendment (Housing) 2024, gazetted on 15 March 2024, amended Schedule 7A savings and transitional provisions, thereby requiring consideration of Ch 4 of the SEPP Housing, as follows: Chapter 4 Design of residential apartment development 142 Aims of chapter (1) The aim of this chapter is to improve the design of residential apartment development in New South Wales for the following purposes— (a) to ensure residential apartment development contributes to the sustainable development of New South Wales by— (i) providing socially and environmentally sustainable housing, and (ii) being a long-term asset to the neighbourhood, and (iii) achieving the urban planning policies for local and regional areas, (b) to achieve better built form and aesthetics of buildings, streetscapes and public spaces, (c) to maximise the amenity, safety and security of the residents of residential apartment development and the community, (d) to better satisfy the increasing demand for residential apartment development, considering— (i) the changing social and demographic profile of the community, and (ii) the needs of a wide range of people, including persons with disability, children and seniors, (e) to contribute to the provision of a variety of dwelling types to meet population growth, (f) to support housing affordability, (g) to minimise the consumption of energy from non-renewable resources, to conserve the environment and to reduce greenhouse gas emissions, (h) to facilitate the timely and efficient assessment of development applications to which this chapter applies. (2) This chapter recognises that the design of residential apartment development is significant because of the economic, environmental, cultural and social benefits of high quality design. 143 Land to which chapter applies This chapter applies to the whole of the State, other than land to which State Environmental Planning Policy (Precincts—Regional) 2021, Chapter 4 applies. 144 Application of chapter (1) In this policy, development to which this chapter applies is referred to as residential apartment development. (2) This chapter applies to the following— (a) development for the purposes of residential flat buildings, (b) development for the purposes of shop top housing, (c) mixed use development with a residential accommodation component that does not include boarding houses or co-living housing, unless a local environmental plan provides that mixed use development including boarding houses or co-living housing is residential apartment development for this chapter. (3) This chapter applies to development only if— (a) the development consists of— (i) the erection of a new building, or (ii) the substantial redevelopment or substantial refurbishment of an existing building, or (iii) the conversion of an existing building, and (b) the building is at least 3 storeys, not including underground car parking storeys, and (c) the building contains at least 4 dwellings. (4) If particular development comprises development for the purposes specified in subsection (2) and development for other purposes, this chapter applies only to the part of the development for the purposes specified in subsection (2). (5) This chapter does not apply to development that involves only a class 1a or 1b building within the meaning of the Building Code of Australia. (6) To avoid doubt, development to which Chapter 2, Part 2, Division 1, 5 or 6 applies may also be residential apartment development under this chapter. (7) In this section— underground car parking storey means a storey used for car parking that is— (a) below ground level (existing), or (b) less than 1.2m above ground level (existing). .. 147 Determination of development applications and modification applications for residential apartment development (1) Development consent must not be granted to residential apartment development, and a development consent for residential apartment development must not be modified, unless the consent authority has considered the following— (a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9, (b) the Apartment Design Guide, (c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel. (2) The 14-day period referred to in subsection (1)(c) does not increase or otherwise affect the period in which a development application or modification application must be determined by the consent authority. (3) To avoid doubt, subsection (1)(b) does not require a consent authority to require compliance with design criteria specified in the Apartment Design Guide. (4) Subsection (1)(c) does not apply to State significant development. 148 Non-discretionary development standards for residential apartment development—the Act, s 4.15 (1) The object of this section is to identify development standards for particular matters relating to residential apartment development that, if complied with, prevent the consent authority from requiring more onerous standards for the matters. Note— See the Act, section 4.15(3), which does not prevent development consent being granted if a non-discretionary development standard is not complied with. (2) The following are non-discretionary development standards— (a) the car parking for the building must be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide, (b) the internal area for each apartment must be equal to, or greater than, the recommended minimum internal area for the apartment type specified in Part 4D of the Apartment Design Guide, (c) the ceiling heights for the building must be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide. 149 Apartment Design Guide prevails over development control plans (1) A requirement, standard or control for residential apartment development that is specified in a development control plan and relates to the following matters has no effect if the Apartment Design Guide also specifies a requirement, standard or control in relation to the same matter— (a) visual privacy, (b) solar and daylight access, (c) common circulation and spaces, (d) apartment size and layout, (e) ceiling heights, (f) private open space and balconies, (g) natural ventilation, (h) storage. (2) This section applies regardless of when the development control plan was made. 1. It is understood that a design review panel has not yet been constituted by the Council, pursuant to s 145 of the SEPP Housing. The application relies on a Design Report and Design Verification Statement, prepared by Smith & Tzannes, dated December 2022 (provided in Exhibit B) to address the requirements of Sch 9, pursuant to s 147. The satisfaction of Principles (1), (2), (5), (6) and (9) remain in contention and are addressed later in the judgment. 2. Pursuant to ss 147 and 149, the NSW Department of Planning and Environment Apartment Design Guide 2015 (ADG) is relevant for consideration of the application, with Part 3, specifically design criteria 3D-1, relating to communal and public open space, remaining in contention, as described below: "Objective 3D-1 An adequate area of communal open space is provided to enhance residential amenity and to provide opportunities for landscaping Design criteria 1. Communal open space has a minimum area equal to 25% of the site (see figure 3D.3). 2. Developments achieve a minimum of 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9 am and 3 pm on 21 June (mid winter). Design guidance Communal open space should be consolidated into a well designed, easily identified and usable area Communal open space should have a minimum dimension of 3m, and larger developments should consider greater dimensions. Communal open space should be co-located with deep soil areas Direct, equitable access should be provided to communal open space areas from common circulation areas, entries and lobbies. Where communal open space cannot be provided at ground level, it should be provided on a podium or roof Where developments are unable to achieve the design criteria, such as on small lots, sites within business zones, or in a dense urban area, they should: • provide communal spaces elsewhere such as a landscaped roof top terrace or a common room • provide larger balconies or increased private open space for apartments • demonstrate good proximity to public open space and facilities and/or provide contributions to public open space." 1. The site is located close to a road corridor (Princes Highway) and rail corridor, pursuant to s 2.120 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport). The amended application relies on an Acoustic Report, prepared by Rodney Stevens Acoustics, dated 17 July 2023, provided in Exhibit B. Based on this report, the amended plans that support the application and agreed conditions of consent, the proposed design of the apartments satisfies the requirements for residential accommodation required by s 2.120(3). 2. The proposed development, as an RFB, requires consideration of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2021 (SEPP BASIX). The amended application relies on a BASIX Certificate, 879105M_05, dated 5 December 2023, which is provided in Exhibit C. The relevant requirements of SEPP BASIX are addressed. 3. The site is situated over land zoned R4 High Density Residential, pursuant to cl 2.3 of the Georges River Local Environmental Plan 2021 (GRLEP). The proposed development is permissible with consent in the R4 zone, and the relevant objectives of the R4 zone are satisfied. 4. The site is adjacent to and in vicinity of local heritage items listed in Sch 5 of the GRLEP, therefore the Court must consider the relevant provisions of cl 5.10. These heritage items include: a dwelling at 2 Victoria Street, known as Hindmarsh; a dwelling (now part of an RFB) at 14-16 Victoria Street, known as Beatrice and Lillyville; and a building at 15 Victoria Street, part of St George Girls High School. The amended application is supported by a Heritage Impact Letter, prepared by Weir Phillips, dated 16 December 2022 and a supplementary letter, dated 9 July 2023. Based on the documents that support the amended application, including the Statement of Environmental Effects, prepared by Planning Ingenuity, dated 15 December 2022, I am satisfied that the objectives and requirements of cl 5.10 are sufficiently addressed. There is no assessed adverse impact or effect on the nominated heritage items. 5. The proposed development results in an exceedance of the 33m height of buildings development standard, established in cl 4.3 of the GRLEP. The amended application relies on an amended cl 4.6 written request (Exhibit D), seeking variation of the building height standard up to a maximum of 35.77m (55.47m AHD). The sufficiency of the request remains in contention. 6. The amended application has demonstrated compliance with the floor space ratio (FSR) requirement of 4:1, established in cl 4.4 of the GRLEP. The proposed development seeks an FSR of 3.79:1, as shown on the amended plans (Exhibit C). 7. In reference to cll 6.2 and 6.3 of the GRLEP, the proposed development seeks excavation for an additional half basement. The amended application relies on a stormwater drainage design assessment, prepared by Romanous & Associates, dated 17 February 2021 and 12 December 2022 (Exhibit B). In addition, the amended application relies on letters prepared by Geotechnique Pty Ltd, dated 25 July 2016 and 18 March 2024, Exhibits E and G/H, respectively. The requirements of cll 6.2 and 6.3 are sufficiently addressed. 8. With regards to the proposed increase in building height, the requirements of cl 6.7 of the GRLEP are relevant for consideration. The original application was referred to Sydney Airport Corporation, who issued GTA's, that are adopted in the agreed conditions of consent. The requirements of cl 6.7 are sufficiently addressed. 9. Pursuant to cl 6.10 of the GRLEP, the Court must have regard to the elements of design excellence that relate to the proposed development as an RFB. This remains in contention. 10. I have formed the opinion, after consideration of the evidence before me, that all relevant standards and objectives of the GRLEP are satisfied by the amended application. In response to the remaining contentions, my opinion of satisfaction with regards to the requirements to vary the height standard (cl 4.3), pursuant to cl 4.6 and for design excellence, pursuant to cl 6.10, are explained in the judgment below. 11. The Georges River Development Control Plan 2021 (GRDCP) is relevant for consideration of the Court. Based on the evidence relating to the amended application, I am satisfied that the relevant requirements of the GRDCP are sufficiently addressed. Contentions requiring the Courts further consideration to grant consent Is a variation of the height of buildings development standard reasonable? 1. The proposed development results in an exceedance of the height of buildings development standard (established at 33m), described in cl 4.3 of the GRLEP. The proposed development seeks a maximum building height of 35.8 m, relating to portions of the building form. Although not relevant to my consideration of the amended application before the Court, it is noted that the (RFB) building approved in the Base Consent, also contravened the cl 4.3 height standard, and relied on a cl 4.6 written request to vary the standard. 2. The amended application relies on a cl 4.6 written request seeking a variation of the development standard in cl 4.3, pursuant to cl 4.6 of the GRLEP. To grant consent to the amended application, the Court must be satisfied of the grounds of the request and other relevant evidence to vary the development standard. The requirements of cl 4.6 of the GRLEP are established below: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows— (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating— (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless— (a) the consent authority is satisfied that— (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Planning Secretary has been obtained. (5) In deciding whether to grant concurrence, the Planning Secretary must consider— (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Planning Secretary before granting concurrence. (6) Development consent must not be granted under this clause for a subdivision of land in Zone RU1 Primary Production, Zone RU2 Rural Landscape, Zone RU3 Forestry, Zone RU4 Primary Production Small Lots, Zone RU6 Transition, Zone R5 Large Lot Residential, Zone C2 Environmental Conservation, Zone C3 Environmental Management or Zone C4 Environmental Living if— (a) the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard, or (b) the subdivision will result in at least one lot that is less than 90% of the minimum area specified for such a lot by a development standard. (7) After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant's written request referred to in subclause (3). (8) This clause does not allow development consent to be granted for development that would contravene any of the following— (a) a development standard for complying development, (b) a development standard that arises, under the regulations under the Act, in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated, (c) clause 5.4, (caa) clause 5.5, (d) clause 6.14. 1. The applicant relies on an amended cl 4.6 written request, dated 6 March 2024, prepared by Planning Ingenuity, and tendered as Exhibit D. Further to this, the applicant relies on the amended plans (Exhibit C) to demonstrate the limited extent of solar and view impact resulting from the proposed development. The amended application is supported by a View Analysis letter, prepared by Smith & Tzannes, dated 1 November 2023. 2. The experts agree in their joint expert reports (Exhibits 2 and 3) that the cl 4.6 written request seeking a variation to the cl 4.3 development standard in GRLEP, has established sufficient environmental planning grounds to justify a contravention of the standard, and that there are no significant environmental impacts arising from the proposed height breach. 3. The respondent however contends that the cl 4.6 written request does not provide sufficient environmental planning grounds to satisfy cl 4.6(3)(b) of the GRLEP, required to justify a variation of the height standard. In addition, it is contended that there are potentially adverse amenity impacts that are not immaterial affecting an adjoining property, due to view and solar access loss. 4. Pursuant to cl 4.6(4) of the GRLEP, the Court must be satisfied that the cl 4.6 written request has adequately demonstrated and addressed the matters described in cl 4.3(3), and that the other matters relating to the zone/height standard objectives, public interest and relevant Planning Secretary considerations are sufficiently addressed. The focus of the Courts assessment of the amended application is on the non-compliant elements of the building that relate to the proposed development. 5. The applicant's cl 4.6 written request explains that the maximum height for the proposed (RFB) building exceeds the 33m (cl 4.3) height standard of the GRLEP by up to 8.5%. The designed height exceedance is primarily limited to the glass screens, parapets, portion of roof form, a pop-up window and lift overrun (required to give access to the new apartments and rooftop COS). 6. With regards to cl 4.3(3)(a) of the GRLEP, the cl 4.6 written request explains that the proposed height breach is both reasonable and necessary because the objectives of the cl 4.3 building height standard are achieved and there are 'no material adverse impacts' resulting from the proposed height non-compliance. The request relies on the reasonableness test (1), described by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; (2007) NSWLEC 827. 7. With regards to cl 4.6(3)(b) of the GRLEP, the cl 4.6 written request explains that there are sufficient environmental planning grounds to vary the height standard. The height breaching elements are described as not resulting in a development that would be out of character with the local area, and not perceived adversely from the streetscape of Victoria Street, Stanley Lane or the public domain. Further to this, the non-compliant height elements would not impact adversely on the amenity of adjoining residents, including from overshadowing, privacy and view loss. The cl 4.6 written request provides shadow and view impact analysis diagrams to demonstrate that there are no adverse amenity impacts to adjoining residents from the elements of the building that breach the height standard. With regards to the relationship of the proposed development to the streetscape and public domain, the cl 4.6 written request explains that the additional height provides an appropriate transition between adjoining (RFB) buildings that are typically 12 and 10 stories. A transition in scale diagram supports the request and demonstrates that the proposed building transition is responsive to existing developments. 8. According to the cl 4.6 written request, the proposed building envelope is consistent with the R4 zone objectives (cl 2.3 of the GRLEP) and the height development standard (cl 4.3), as described below: Zone R4 High Density Residential 1 Objectives of zone • 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. 4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the impact of overshadowing, visual impact, disruption of views and loss of privacy on adjoining properties and open space areas, (c) to ensure an appropriate height transition between new buildings and— (i) adjoining land uses, or (ii) heritage items, heritage conservation areas or Aboriginal places of heritage significance. 1. The cl 4.6 written request explains that the non-compliant portions of the building form are consistent with the existing and desired, future character of the R4 zone, results in no adverse amenity impacts to surrounding heritage items or residents, and the relevant height standard objectives are satisfied. Therefore, pursuant to cl 4.6(3)(a) of the GRLEP, compliance with the height standard is both unreasonable and unnecessary. 2. The cl 4.6 written request surmises that a contravention of the height of buildings development standard, pursuant to cl 4.3 of the GRLEP, is appropriate in this circumstance, and that flexibility of the standard is justified. It is also explained that there are no matters of significance raised and no public benefit in maintaining the height standard on the site, pursuant to cl 4.6(5)(a) and (b). 3. Having reviewed the cl 4.6 written request and evidence before me, I am satisfied that the requirements of cl 4.6 of the GRLEP are sufficiently addressed to vary the height standard, as sought by the amended application. Consistent with Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [24] I have focused my consideration on the sufficiency of the environmental planning grounds explored in the cl 4.6 written request that relate to the proposed development (that breaches the standard), rather than the whole of the approved building. 4. The cl 4.6 written request sufficiently considers and addresses the requirements of cl 4.6(3) of the GRLEP, by describing sufficient environmental planning grounds to justify contravention of the (building height) development standard and explains why strict compliance of this standard would be both unreasonable and unnecessary. This request has reasonably assessed that the elements of non-compliance to the building height standard do not cause adverse amenity impact to adjoining residents, the public domain or heritage items. 5. I am satisfied that the proposed building height will not be adversely viewed in the streetscape or public domain, and provides a reasonable transition between existing approved developments. I accept that Council has not effectively abandoned the height standard in this zone, the consequence of previous consents on adjoining properties, including the Base Consent. However, it is observed that the building form along the streetscape is generally higher than the height standard and consistent with the proposed development. It is agreed that lowering of the building to create subterranean dwellings is not considered an appropriate response in this context, as viewed at 12 Stanley Street. Provision of affordable housing as a reasonable basis to allow a height breach, as posed by Mr O'Gorman-Hughes, is not considered relevant or appropriate to my consideration. 6. The maintenance of the (33m) height standard described in cl 4.3 of the GRLEP for the proposed development is assessed as not reasonable nor necessary to achieve the objectives of the R4 zone and (cl 4.3) height of buildings standard. The proposed development is not likely to cause any (material) adverse impact to residents. I am satisfied that the cl 4.6 written request has sufficiently demonstrated that cll 4.6(3) and 4.6(4(a)(i) 4.6(4)(a)(i) of the GRLEP are achieved. 7. The proposed building form, as amended, has an acceptable bulk and scale presenting to the streetscape and public domain, including the additional units. The transition of the proposed building form relative to existing adjoining developments is considered reasonable. 8. I find that the amended building form achieves the objectives of the zone (R4) and the height (cl 4.3) standard, as established in the GRLEP. I am satisfied, based on the evidence before me, that the amended application, including the portions of the building envelope that result in a breach in the height of buildings development standard is unlikely to result in adverse amenity impact to surrounding residents, heritage items and the public domain; and responds appropriately to key elements in the streetscape, including the adjoining buildings. I assess that the proposed breach is not incompatible with the character of the local area, acknowledging that the immediate surrounding area has similar storied RFB's. 9. Based on my consideration of the amended application, I find that there are no assessed adverse or material amenity impacts to residents, and the building form will present consistently with adjoining developments, in the streetscape and in the public domain. I am satisfied that the amended application is justified in seeking a contravention of the building height standard, as described in cl 4.3 of the GRLEP. The proposed variation of the building height standard is assessed as being in the public interest. The requirements of cl 4.6(4)(a)(ii) are addressed. 10. I am satisfied that there are no significant consequences to State or Regional environmental planning matters resulting from the proposed height standard breach, and that there is no public benefit to maintaining the (height) standard for the proposed development on the site. The variation of the height development standard, as sought, satisfies cl 4.6(4)(b) or (5) of the GRLEP. 11. Based on the evidence before me and in consideration of the amended application, I am satisfied that the requirements of cl 4.6 of the GRLEP have been addressed, and that a variation to the height development standard, as established in cl 4.3, should be upheld. Does the proposed development exhibit design excellence? 1. The contention as raised by the respondent relates to a perceived inefficiency and poor functionality of the proposed COS areas, located on the ground level and rooftop. 2. The contention relates to satisfaction of the Design Principles, established in Sch 9 of the SEPP Housing, requirements of the ADG (specifically design criteria in Part 3), and cl 6.10 of the GRLEP. 3. To grant consent, the Court must have regard to these requirements, in particular be satisfied that the application exhibits design excellence, pursuant to cl 6.10 of the GRLEP and Sch 9 of the SEPP Housing. The Court must form an opinion on the architectural design of the proposed additional level and amended design of the RFB. Consideration is required with respect to its appearance and provision of residential amenity, as an appropriate response to its environmental context. 4. Clause 6.10 of the GRLEP is engaged because the amended application relates to the development of an RFB that exceeds three storeys and 12m in height, within an R4 zone, pursuant to cl 6.10(3). The requirements of cl 6.10 of the GRLEP are described below: 6.10 Design excellence (1) The objective of this clause is to deliver the highest standard of sustainable architecture and urban design. (2) This clause applies to development on land referred to in subclause (3) involving— (a) the erection of a new building, or (b) additions or external alterations to an existing building that, in the opinion of the consent authority, are significant. (3) This clause applies to development on the following land— (a) land identified on the Foreshore Scenic Protection Area Map if the development is for one or more of the following purposes— (i) bed and breakfast accommodation, (ii) health services facilities, (iii) marinas, (iv) residential accommodation, except for secondary dwellings, (b) land in the following zones if the building concerned is 3 or more storeys or has a height of 12 metres or greater above ground level (existing), or both, not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking— (i) Zone R4 High Density Residential, (ii) Zone B1 Neighbourhood Centre, (iii) Zone B2 Local Centre, (iv) Zone B3 Commercial Core, (v) Zone B4 Mixed Use, (vi) Zone B6 Enterprise Corridor, (vii) Zone IN2 Light Industrial. (4) Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. (5) In considering whether the development exhibits design excellence, the consent authority must have regard to the following matters— (a) whether a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved, (b) whether the form and external appearance of the development will improve the quality and amenity of the public domain, (c) whether the development detrimentally impacts on view corridors, (d) how the development addresses the following matters— (i) the suitability of the land for development, (ii) existing and proposed uses and use mix, (iii) heritage issues and streetscape constraints, (iv) the relationship of the development with other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity and urban form, (v) bulk, massing and modulation of buildings, (vi) street frontage heights, (vii) environmental impacts such as sustainable design, overshadowing and solar access, visual and acoustic privacy, noise, wind and reflectivity, (viii) pedestrian, cycle, vehicular and service access and circulation requirements, including the permeability of pedestrian networks, (ix) the impact on, and proposed improvements to, the public domain, (x) achieving appropriate interfaces at ground level between the building and the public domain, (xi) excellence and integration of landscape design, (xii) the provision of communal spaces and meeting places, (xiii) the provision of public art in the public domain, (xiv) the provision of on-site integrated waste and recycling infrastructure, (xv) the promotion of safety through the application of the principles of crime prevention through environmental design. 1. I am satisfied that the amended application delivers the highest standards of architectural and urban design, pursuant to cl 6.10(1) and (4), and has had regard to the relevant requirements of cl 6.10(5) of the GRLEP, as described below: * The proposed alterations and additions to the building design and materials complement the approved development (Base Consent) and existing RFB developments in the streetscape, providing a well separated building mass, of muted tones and colours, that is supported by functional landscaped areas for COS. * The proposed building alterations are well set back in the streetscape, both in horizontal and vertical dimension, with front and side setbacks sufficiently landscaped, including along the western setback by a 6m wide pedestrian through link. * The proposed design of the building additions and alterations does not cause adverse impact on views, public domain or landmarks, including to heritage items. * The proposed design of the building additions and alterations has considered and adopted the relevant sustainable design principles, as described in the ADG. 1. The amended application relies on a Design Report and Design Verification Statement (Design Report), prepared by Smith & Tzannes, dated December 2022. I am satisfied that this document has considered and appropriately assessed the design of the amended RFB in context with its relationship to the urban streetscape. 2. I have addressed previously the issues of bulk and scale of the proposed building and its relationship to the streetscape. I am satisfied that the proposed development, with the amendments to the design, provide a reasonable transition to existing and adjoining developments in the streetscape, and will not adversely impact the view from the public domain or adjoining residences. I concur with the opinion of the planning and urban design experts in their joint expert report (Exhibit 2) that states 'The proposed additional height reinforces the stepping street wall along Victoria Street towards Stanley Street by reducing the significant height difference with 6-16 Victoria Street'. 3. Based on my observations, as viewed from relevant vantage points within the streetscape, I did not perceive that the visibility of the proposed upper level of the future RFB, as positioned on the site, would have an adverse impact to the streetscape or setting. There is sufficient separation of the building envelope from adjoining developments. There is an expansive landscaped area proposed at the ground floor level, located between the proposed building and an adjoining RFB on Victoria Street. A person standing in the public domain would unlikely find the view of the proposed upper storey (level 10) on the future RFB on the site as unexpected or out of visual place. I am satisfied there is no adverse impact to the setting, view or fabric of the streetscape and public domain. 4. There are no issues raised with regards to the achievement of the principles for a good sustainable design, optimised safety, housing diversity and appropriate social interaction. The outcomes described in the Design Report seek to address the relevant principles described in Ch 4 of the SEPP Housing and supports the application. 5. In find that the proposed location, area and landscaping of the COS's is sufficient, appropriate and responsive to the streetscape, providing amenity to future residents, including sufficient solar access as required in design criteria 3D-1 of the ADG. I understand that the proposed COS area on the ground floor level provides a landscaped area that will form part of the public domain, as a pedestrian through link. The discrete COS areas that are dedicated on the roof and ground floor level, are intended to provide opportunity for residents to utilise these areas for diverse purpose, at different times of the day/year. 6. The experts agree in their joint expert report (Exhibit 2) that the proposed COS numerically provides sufficient area to satisfy design criteria 3D-1 in the ADG, making up 36% of the site area. The experts also agree that the proposed COS achieves the solar requirements described in 3D-1. However, the functionality and residential amenity of the proposed individual COS areas is not fully resolved. Ms Waghorn is concerned by the functionality of the two disconnected COS areas on the rooftop, and that the COS of the ground floor is not for the exclusive use of residents. The other experts consider that the ADG envisages public access to some parts of a COS associated with an RFB, and that the discrete areas of COS provide for diverse use and allow for climatic variations. 7. I am satisfied there are no assessed amenity impacts resulting from the addition of the two apartments on level 10 or caused by the redesign of the COS on the ground floor level (level 0) and the rooftop (level 10). I am satisfied that the proposed COS areas are functional in area and location, will serve their intended purpose to provide residential amenity, and that the proposed building design does not result in adverse overshadowing, privacy or view impacts to future or adjoining residents. The outcomes described in the Design Report supporting the application do not contradict this position. 8. I am satisfied that the design criteria and objectives in 3D-1 in the ADG are sufficiently addressed by the adequate provision in area and location of the COS, adequate solar access, and functional, amenable spaces for future residents. 9. I am satisfied that the side setback for the proposed development is sufficient and does not result in additional or adverse amenity impacts to future or adjoining residents. I note that the Base Consent approved a 6m setback for all levels, and that this application for units on level 10 is consistent with the setback approved in this consent. 10. Based on the evidence and the amended application, I am satisfied that the design principles for RFB's, described in Sch 9 of the SEPP Housing are sufficiently achieved. The proposed alterations and additions to the building design demonstrate a good design outcome that responds to the existing, and desired, future streetscape. The proposed building alterations transition well in scale between existing, adjoining developments and is consistent with the local context with regards to building articulation, setbacks and form. There are no assessed adverse or material amenity impacts resulting from the proposed development. 11. I am satisfied that the relevant requirements of the SEPP Housing, including Ch 4 are sufficiently addressed by the proposed development. Pursuant to s 147(1), I have considered the design principles in Sch 9 and find that the proposed development exhibits design excellence and addresses the relevant design criteria in the ADG. The proposed development provides sufficient amenity, parking and space for future residents, pursuant to ss 148 and149 of the SEPP Housing. 12. As explained in this judgment, I am satisfied that the objectives and requirements of cl 6.10 of the GRLEP are achieved. The proposed development exhibits sufficient design excellence. 13. Having considered the amended application and evidence, I find that the proposed development achieves the relevant requirements established in s 4.15(1)(a) of the EPA Act, does not cause adverse impact, pursuant to s 4.15(1)(b), and is suitable for the site, pursuant to s 4.15(c). Have the resident objections been considered? 1. The residents were given the opportunity during a period of notification of the original application to provide written submissions, pursuant to s 4.15(1)(a)(ii) of the EPA Act. The (1) submission received has been provided in evidence (Exhibit 4) and considered by the Court. 2. I am satisfied that residents have had sufficient opportunity to assess the application and address the Court, pursuant to s 4.15(1)(a)(ii) and (d) of the EPA Act. I am also satisfied that the issue raised by the objector, being solar access, has been appropriately considered and is addressed. Is the (amended) application in the public interest? 1. After consideration of the evidence before the Court, and matters of relevance to this amended application, as described above, I find that the amended application is in the public interest, satisfying s 4.15(1)(e) of the EPA Act. The amended application does not pose adverse amenity impacts to existing/future residents or the surrounding area, and complements the existing character of the local area. 2. Specifically, the proposed dveelopment provides a sufficient setback on the upper level of the RFB that does not cause adverse amenity issues, and there is sufficient area of landscaping in the COS areas, providing residential amenity. Costs 1. The respondent has not sought a costs order to address its costs associated with amendments made to the application prior to the proceedings, pursuant to s 8.15(3) of the EPA Act, below: (3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act 1979 applies. Conditions 1. Based on the findings described above, I determine to grant conditional consent to the application, as amended, pursuant to s 4.16(1)(a) of the EPA Act, and impose conditions as described in Annexure A, pursuant to s 4.17(1). The agreed consolidated set of draft conditions were directed to be filed on 22 March 2024, and received on this date, identified as Exhibit 5. Corrections to the agreed conditions were filed on 4 April 2024. 2. I adopt the agreed conditions of consent, which become Annexure A. The effect of this consent is to modify the relevant conditions attached to the Base Consent. Conclusion 1. The amended application has been assessed, based on the evidence before the Court, including the (amended) supporting plans, documents, agreed conditions of consent, expert reports and submission from a resident. 2. In determining to grant consent to this amended application, I find that the proposed development as described to the Court satisfies the requirements of the relevant regulatory instruments, namely the EPA Act, EPA Reg, SEPP Housing and the GRLEP. The reasons for my determination, as explained above, are principally because the proposed development is reasonable, compatible with the character of the local area, does not cause adverse amenity impact to future or adjoining residents, exhibits design excellence, and is in the public interest. 3. I therefore grant consent for Development Application (DA2023/0015), with conditions pursuant to s 4.16(1)(a) of the EPA Act. Orders 1. The Court notes that: 1. The Court, pursuant to s 39(2) of the Land and Environment Court Act 1979, and acting as the consent authority, pursuant to s 38(1) of the Environment Planning and Assessment Regulation 2021, granted leave to amendment of Development Application (DA2023/0015), for the following documents: 1. Amended plans described in Exhibit AMK-1 (Exhibit C of the hearing), and 2. Amended cl 4.6 written request, prepared by Planning Ingenuity, date 6 March 2024 (Exhibit D in the hearing). 1. The applicant has filed with the Court the amended application on 11 December 2023 (Exhibit C) and 6 March 2024 (Exhibit D). 1. The orders of the Court are: 1. The amended written request under clause 4.6 of the Georges River Local Environmental Plan 2021, prepared by Planning Ingenuity, dated 6 March 2024, seeking a variation to the development standard for height of buildings under clause 4.3, is upheld. 2. The appeal is upheld. 3. Development Application DA2023/0015, as amended, seeks alterations and additions to an approved a 11-storey residential flat building with basement parking, landscaping and associated civil works on Lot 71 Section B Deposited Plan (DP) 383744, Lot 70 Section B DP 1397, Lot B DP 398263 and Lot A DP 398263, also known as 18, 20, 22 and 24A Victoria Street, Kogarah, respectively, is determined by the grant of consent, subject to conditions in Annexure A. 4. The exhibits are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A ********** 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: 16 April 2024