Land and Environment Court New South Wales Medium Neutral Citation: Fuse Architecture Pty Ltd v Georges River Council [2025] NSWLEC 1120 Hearing dates: Conciliation conference on 7 June 2024 and 7 February 2025 Date of orders: 28 February 2025 Decision date: 28 February 2025 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant was ordered to pay Georges River Council costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 pursuant to Order 2 made by the Court on 24 January 2025. Those costs are agreed in the amount of $14,000 and are to be paid within 90 days of the date of these orders. (2) The appeal is upheld. (3) Development Application DA 2021/0424 for the demolition of the existing dwelling and ancillary structures and the subsequent construction of a ten-storey 'shop top' housing development containing 35 residential apartments and two retail premises over three levels of basement parking at Lots 131 and 132 in DP 1388, otherwise known as 37-39 Princes Highway, Kogarah and 21-35 Princes Highway, Kogarah (only to the extent that it authorises the Wall Works required by this consent and the use authorised by the Amended Easement). Catchwords: DEVELOPMENT APPLICATION – shop top housing – vehicular access through adjoining land – conciliation conference – amended plans – agreement between the parties – orders made Legislation Cited: Airports Act 1996, Div 4, Pt 12 Environmental Planning and Assessment Act 1979, ss 4.15, 8.15, 8.7 Land and Environment Court Act 1979, s 34 Airports (Protection of Airspace) Regulations 1996 Environmental Planning and Assessment Regulation 2000, cl 49, 50 Georges River Local Environmental Plan 2021, cll 2.7, 4.3, 4.4, 4.6, 6.2, 6.3, 6.7, 6.9, 6.10 Greater Metropolitan Regional Plan No. 2 - Georges River Catchment State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 6, 11, Pt 11, ss 2.6, 6.65, 11.5, 11.6, 11.7, 11.8 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy Amendment (Water Catchments) 2022 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 Cases Cited: Fuse Architecture Pty Ltd v Georges River Council [2024] NSWLEC 1294 Texts Cited: Georges River Community Participation Plan Georges River Council Stormwater Management Policy Georges River Development Control Plan 2021 NSW Department of Planning and Environment, Apartment Design Guide (July 2015) NSW Environment and Heritage, Managing Urban Stormwater - Soils and Construction Category: Principal judgment Parties: Fuse Architecture Pty Ltd (Applicant) Georges River Council (First Respondent) The Owners of Strata Plan No 89161 (Second Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) S Wilson (Solicitor) (First Respondent) J Bates (Solicitor) (Second Respondent) Solicitors: Bartier Perry (Applicant) HWL Ebsworth (First Respondent) Grace Lawyers Pty Limited (Second Respondent) File Number(s): 2023/451344 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal by Fuse Architecture Pty Ltd (the Applicant) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal of DA 2021/0424. The development application, as amended, seeks consent for the demolition of the existing dwelling and ancillary structures and the subsequent construction of a ten- storey 'shop top' housing development containing 35 residential apartments and two retail premises over three levels of basement parking. The site of the development is 37-39 Princes Highway, Kogarah (the Site). However, for the development to be realised it requires some limited works and use of the adjoining property 21-35 Princes Highway, Kogarah. The Applicant has been granted leave to amend their development application to include the adjoining property in the description of the development for which consent is sought. 2. The Court joined the Second Respondent to the proceedings on 31 May 2024 in Fuse Architecture Pty Ltd v Georges River Council [2024] NSWLEC 1294. 3. The proposed development, once completed, proposes vehicular access to three new levels of basement parking to be constructed on the Site through an existing right of carriageway burdening part of the common property basement of the adjacent site, being a strata scheme, Strata Plan No 89161, situated at 21-35 Princes Highway, Kogarah NSW 2217 (Adjoining Property). The terms of the existing right of carriageway are contained in Items 4, 5 and 6 of the Section 88B Instrument applicable to the Adjoining Property (Existing Easements). 4. The development application includes the following works proposed to be carried out by the Applicant to that part of the common property basement of the Adjoining Property as identified in the Fuse Architects architectural plans (Adjoining Property Works Plans): 1. the creation of six wall openings to the three basement levels of the Adjoining Property (two wall openings on each basement level); and 2. the installation of six fire shutters to the six wall openings specified in (a) above (with two shutters installed on each basement level of the Adjoining Property), (together, the Adjoining Property Works). 1. The registered proprietor of the common property of the Adjoining Property (including that part of the common property basement to which the Adjoining Property Works are proposed to be carried out) is The Owners – Strata Plan No 89161 (The Owners Corporation). The development application, including the Adjoining Property Works, require landowner's consent from The Owners Corporation which has been obtained. 2. The Court arranged a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held on 7 June 2024. Following the conciliation, the parties continued discussions and reached an agreement based on amended plans and documents. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 7 February 2025. I presided over both conciliation conferences. 3. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: Environmental Planning and Assessment Act 1979 1. The development application was notified in accordance with the Georges River Community Participation Plan between 11 November 2021 to 25 November 2021. Five submissions were received, one from the Second Respondent. The Applicant also provided amended plans to the First Respondent which were also publicly notified between 15 December 2022 and 19 January 2023. A submission was received from the Second Respondent. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act Environmental Planning and Assessment Regulation 2000 1. As the registered proprietor of the common property of the Adjoining Property, The Owners Corporation has agreed to provide its consent to the making of the amended development application, in so far as it concerns the Adjoining Property Works to part of the common property basement of the Adjoining Property (in the locations identified in the Adjoining Property Works Plans), to be carried out in accordance with the conditions of consent set out in "Annexure A", including the registration of amended terms to substitute in full the terms of the Existing Easements (Amended Easement Terms). The Amended Easement Terms are an annexure to the conditions of consent. 2. The development application was lodged by the Applicant with the consent of Regent 88 Pty Ltd, owner of the Site. The requirements of cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) are met. 3. Pursuant to cll 50(1A) and 50(1B) of the EPA Regulation, the development application is required to be accompanied by a statement from a qualified designer that addresses how the design quality principles of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 and the objectives in Parts 3 and 4 of the Apartment Design Guide (ADG) have been achieved. A Design Principles Statement, a Design Verification Statement and an ADG compliance table form part of the development application. With the assistance of these documents, I am satisfied that the development application has had adequate regard to the design quality matters for consideration under s 4.15 of the EPA Act, the design quality principles and the ADG. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The development application is BASIX affected development pursuant to s 6(1)(a) of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The amended development application is supported by BASIX Certificate. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The First Respondent and the Applicant agree, and I accept, that the Site has a long history of residential use with no known records of contaminating activity being conducted on the Site. This history is detailed in the Statement of Environmental Effects. Further, the annexed conditions include the imposition of a condition of consent relating to demolition which involves the removal of any asbestos. I find that s 4.6(1) of SEPP RH is satisfied. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. When lodged the development application, it was subject to the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). On 1 March 2022, the Vegetation SEPP was repealed, and its provisions were transferred to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). 2. Pursuant to s 2.6(1) of SEPP BC, vegetation cannot be cleared on land to which this Chapter applies without the authority conferred by a permit granted by the First Respondent. The parties agree, and I accept, that the removal of small to medium sized trees on the Site to facilitate the development is acceptable. 3. The development application when lodged, it was subject to the provisions of the Greater Metropolitan Regional Plan No. 2 - Georges River Catchment (REP - GRC). On 1 March 2022, the REP - GRC was repealed, and its provisions transferred to Ch 11 of SEPP BC. 4. On 21 October 2022, Ch 11 of SEPP BC was repealed and consolidated into a new Ch 6 of SEPP BC by the State Environmental Planning Policy Amendment (Water Catchments) 2022. Section 6.65 of the new Ch 6 provides as follows: (1) The former provisions continue to apply, and the other provisions of this Chapter do not apply, to an application for development consent lodged, but not finally determined, before the commencement of State Environmental Planning Policy Amendment (Water Catchments) 2022. 1. Accordingly, the provisions of former Ch 11 of SEPP BC apply to the development application, as it was lodged on 12 October 2021. 2. Pursuant to s 11.6(a) of SEPP BC, the planning principles at Part 11 of Chapter 11 are to be applied by the consent authority in determining a development application. Those principles are: (a) the aims, objectives and planning principles of this Chapter, (b) the likely effect of the proposed plan, development or activity on adjacent or downstream local government areas, (c) the cumulative impact of the proposed development or activity on the Georges River or its tributaries, (d) any relevant plans of management including any River and Water Management Plans approved by the Minister for Environment and the Minister for Land and Water Conservation and best practice guidelines approved by the Department of Urban Affairs and Planning (all of which are available from the respective offices of those Departments), (e) the Georges River Catchment Regional Planning Strategy (prepared by, and available from the offices of, the Department of Urban Affairs and Planning), (f) all relevant State Government policies, manuals and guidelines of which the council, consent authority, public authority or person has notice, (g) whether there are any feasible alternatives to the development or other proposal concerned. 1. In relation to these aims and objectives, the First Respondent and the Applicant agree, and I accept, that: 1. The likely effect of the development application on a downstream local government area will be non-existent or negligible given the Site context. The Site is located within a heavily urbanised area located roughly three kilometres distant from the Georges River and roughly two kilometres distant from Botany Bay; 2. Similarly, the cumulative impact of the development application on the Georges River, or its tributaries, will be negligible given the context as set out above. The development application involves an increase in residential density on the subject site and proposes appropriate stormwater management measures to manage the increased hard surfaces; 3. there are no relevant plans of management to be considered; 4. the document referred to is also known as the Georges River Catchment Regional Environmental Plan, an earlier iteration of the REP - GRC, which ultimately became Ch 11; 5. Managing Urban Stormwater - Soils and Construction (Blue Book) is a relevant State Government guideline and the proposed conditions of consent agreed between the First Respondent and the Applicant require compliance with this document; 6. In relation to feasible alternatives to the development, there is no economically feasible alternative, given the zoning and context of the subject site, to the subject development application or a development application for a similar use. 1. Section 11.7 of SEPP BC sets out the specific principles which must be taken into account when determining a development application to which Ch 11 applies. These relevantly include principles relating to Acid Sulfate Soils (ASS) and urban/stormwater runoff. In relation to these aims and objectives, the First Respondent and the Applicant agree, and I accept, that: 1. The subject site is not identified in the ASS mapping in the Georges River Local Environmental Plan 2021 (LEP 2021), and the principle at 11.7(1) relating to ASS is accordingly not engaged. 2. Principle 9 relates to the potential impacts of stormwater runoff. The impacts of stormwater runoff from the Site have been minimised to the extent feasible and to the satisfaction of the First Respondent's stormwater engineer. Mitigation measures in accordance with the Blue Book have also been implemented to the satisfaction of the First Respondent's stormwater engineer in relation to the amended concept stormwater plans. The parties have agreed upon a condition of consent that requires compliance with the Blue Book in relation to erosion and sediment control. 1. Section 11.8 of SEPP BC includes further specific matters for consideration. Stormwater management system or works are addressed at 20 in the planning control table. The First Respondent and the Applicant agree, and I accept, that: 1. The stormwater system that forms part of the amended development application meets the definition, as it is designed to collect, channel and disperse stormwater runoff from an area of urban development. 2. Untreated stormwater is not disposed of into the Georges River or its tributaries; 3. The stormwater runoff from the Site is disposed of into public stormwater pits and pipes, not directly into any receiving waters; 4. The level of nutrients and sediments entering any waterway are to be controlled during construction in accordance with agreed conditions of consent and the level of nutrients and sediments will accordingly not be increased by the development application; 5. The stormwater management system proposed is in accordance with Georges River Council's Stormwater Management Policy and therefore meets the First Respondent's stormwater management objectives. The proposed conditions of consent agreed between the First Respondent and the Applicant require compliance with the Blue Book. 6. The First Respondent does not have a separate sediment control plan, however, requirements in relation to sediment control are located within its Stormwater Management Policy, with which the amended development application complies. Further, the level of nutrients and sediments entering any waterway are to be controlled during construction in accordance with agreed conditions of consent. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. The development application was lodged under the provisions of State Environmental Planning Policy (Infrastructure) 2007. On 1 March 2022 this instrument was repealed, and the provisions were transferred to State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). 2. Clause 2.119 applies to the development application as the subject site has a frontage to Princes Highway which is identified as a Classified Road. Clause 2.119(2) is satisfied as: 1. all vehicular access to the Site is via Regent Lane including access to the proposed external loading bay area to be constructed on the Site. 2. access to the basement levels of the proposed building will be provided through a right of carriageway across the Adjoining Property, as established under the Existing Easements. The Applicant and The Owners Corporation have agreed to Amended Easement Terms for the vehicular access through the Adjoining Property once the development on the Site is completed. Georges River Local Environmental Plan 2021 1. The Site is zoned R4 High Density Residential under LEP 2021. Development for the purposes of shop top housing is permitted with consent. In determining the development application, I have given consideration to the objectives of the zone. 2. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021. 3. Pursuant to cl 4.3 'Height of Buildings' in LEP 2021, the maximum height limit applicable to the Site is 33m. The development application complies with the height development standard. 4. Pursuant to cl 4.4 'Floor Space Ratio' in LEP 2021, the maximum floor space ratio (FSR) limit applicable to the Site is 4:1. The proposed development seeks to vary the FSR standard, proposing an FSR of 4.2:1. The development application is accompanied by a written request to vary the FSR standard. I have read the written request prepared by BMA Urban (dated 5 February 2025) and in accordance with cl 4.6 of LEP 2021, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). In particular, I accept that the objectives of the FSR standard are met, notwithstanding the variation to the standard. 2. I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). 3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2021 and the objectives of the R4 High Density Residential zone. 4. Pursuant to cl 4.6(5) of LEP 2021, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 5. The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR control. 1. Pursuant to cl 6.2 of LEP 2021, development consent is required for the proposed earthworks. In relation to required considerations at cl 6.2(3), I accept the agreed position of the parties that: 1. the proposed earthworks are unlikely to have any detrimental impact on groundwater, 2. that the Site is unlikely to contain any items of historic significance, 3. that the Site is highly unlikely to be contaminated; and 4. that the earthworks are unlikely to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items. 1. Further, I accept the agreement of the parties that the annexed conditions and the Amended Easement Terms will ensure that the proposed works, including the earthworks, will not impact on neighbouring developments. 2. In relation to required considerations at cl 6.3(2) Stormwater in LEP 2021, I accept the agreed position of the parties that: 1. the development, as amended, is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; 2. includes (as required by the Georges River Stormwater Management Policy) on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development's reliance on mains water; 3. avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact; and 4. is designed to minimise the impact on public drainage systems. 1. Pursuant to cl 6.7 'Airspace Operations' of LEP 2021, consent must not be granted to development where the clause applies unless consultation has occurred with the relevant Commonwealth body. The First Respondent referred the original development application to the Commonwealth Department of Infrastructure, Transport, Regional Development and Communications pursuant to the Airports (Protection of Airspace) Regulations 1996 because at that time the proposed building penetrated prescribed airspace above Sydney Airport by 1.1 m. On 10 January 2022, the Commonwealth Department of Infrastructure, Transport, Regional Development and Communications provided a response indicating that the construction of the building would constitute a 'controlled activity' for the purposes of Div 4 of Pt 12 of Airports Act 1996 and that that activity was approved, subject to certain conditions which are reflected in the agreed conditions of consent. I find that the proposed development satisfies cl 6.7 of LEP 2021. 2. Clause 6.9 'Essential services' of LEP 2021 provides that development consent must not be granted to a development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the supply of telecommunications facilities, (d) the disposal and management of sewage, (e) stormwater drainage or on-site conservation, (f) suitable vehicular access. 1. The parties agree, and I accept, adequate arrangements have been made to make available the services that are essential to the development, noting the Site survey nominates their existing locations. Transport for NSW, Ausgrid and Sydney Water have each provided referral responses to the development application indicating they have no objections to the proposal, subject, in the case of Transport for NSW, to the imposition of certain conditions which are reflected in the agreed conditions of consent. I am satisfied the essential services requirements under cl 6.9 of LEP 2021 are met. 2. Clause 6.10 'Design Excellence' applies to the development application as it concerns the erection of a new building which is three or more storeys on land located in the R4 High Density Residential Development zone. Pursuant to cl 6.10(4), development consent cannot be granted for development to which the clause applies unless the consent authority, after considering the matters at cl 6.10(5)(d)(i) to (xv), considers that the development exhibits design excellence. 3. Having reviewed the amended development application against the matters for consideration at subcl (5) of cl 6.10, I am satisfied that the development application exhibits design excellence. My reasoning follows: 1. Having reviewed the architectural plans, and with the assistance of the Design Principles Statement, the Design Verification Statement and the ADG compliance table form, I am satisfied that form, materials and detailing of the amended proposal achieve a high standard of architectural design; 2. The locality in which the Site is located in in transition to higher density forms of residential development. The replacement of the existing residential dwelling with a new shop top housing development that is consistent with desired future character will improve the quality and amenity of the public domain. 3. There are no nominated view corridors that will be impacted by the proposed development. 4. The matters listed at cl 6.10(5)(d)(i) to (xv) have been considered in the documents in support of the development application. I accept the agreement of the parties that the development appropriately addresses those matters. 1. Georges River Development Control Plan 2021 (DCP 2021) applies to the Site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2021. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. Conclusion 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 in s 34(3)(b) also requires me to "set out in writing the terms of the decision". 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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. That the First Respondent, Georges River Council, agrees to the Applicant amending Development Application DA2021/0424 to rely on the following materials: 1. Clause 4.6 Variation Request, prepared by BMA Urban, dated 5 February 2025; 2. Owner's Consent, Regent 88 Pty Ltd, dated 21 September 2023. 3. Owner's Consent, The Owners - Strata Plan No 89161, dated 4 February 2025. 4. An amendment to the description of the development for which consent is sought under DA/2021/0424. Orders 1. The Court orders: 1. The Applicant was ordered to pay Georges River Council costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 pursuant to Order 2 made by the Court on 24 January 2025. Those costs are agreed in the amount of $14,000 and are to be paid within 90 days of the date of these orders; 2. The appeal is upheld. 3. Development Application DA 2021/0424 for the demolition of the existing dwelling and ancillary structures and the subsequent construction of a ten-storey 'shop top' housing development containing 35 residential apartments and two retail premises over three levels of basement parking at Lots 131 and 132 in DP 1388, otherwise known as 37-39 Princes Highway Kogarah and 21-35 Princes Highway, Kogarah (only to the extent that it authorises the Wall Works required by this consent and the use authorised by the Amended Easement). D Dickson 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: 28 February 2025