M & J Conradt Pty Ltd and M & J Conradt Investment Trust v Georges River Council [2016] NSWLEC 1425

Land and Environment Court New South Wales

Medium Neutral Citation: M & J Conradt Pty Ltd and M & J Conradt Investment Trust v Georges River Council [2016] NSWLEC 1425 Hearing dates: 19 July 2016 Date of orders: 19 July 2016 Decision date: 19 July 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [31] Catchwords: APPEAL - consent orders - development application – construction of a multi-dwelling development with strata subdivision – density of development – objectors concerns - privacy and amenity impacts Legislation Cited: Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Hurstville Development Control Plan No 1 Category: Principal judgment Parties: M & J Conradt Pty Ltd and M & J Conradt Investment Trust (Applicant) Georges River Council (Respondent) Representation: Counsel: Mr M Staunton (Applicant) Ms Jennifer Ware (Solicitor) (Respondent)

Solicitors: Mr Grant Christmas, Apex Planning and Environment Law (Applicant) Ms Jennifer Ware, Georges River Council (Respondent) File Number(s): 2016/00161764

ex tempore Judgment 1. This judgment concerns a development application (DA 2015/0209) for the construction (and strata subdivision) of a multi-dwelling development at 59 Park Street, Peakhurst (the Site). 2. The proceedings were commenced by M & J Conradt Pty Ltd and M & J Conradt Investment Trust, (the Applicant) pursuant to s 97(1) of the Environmental Planning Assessment Act 1979 (EPA Act) following the Georges River Council's decision to refuse its consent to the development. The Council's decision to refuse consent was contrary to the recommendation of the Council's Assessing Officer who had supported a variation to the density and excavation controls under Hurstville Development Control Plan – No 1 (Exhibit 5) and recommended a conditional approval of the development. Since that decision the Council has had an opportunity to assess further information about the proposal, including expert planning and arboriculture evidence. I am told that it is now satisfied that a conditional approval of the development should be granted. 3. The Council joins with the Applicant in requesting the Court to make Consent Orders granting the development consent, subject to conditions (Exhibit A). 4. Notwithstanding the agreed position between the parties, I am required to be satisfied that it is appropriate to make the orders sought by them. In considering the Consent Orders, the Court's Practice Note – Residential Class 1- Development Appeals (the Practice Note) provides that I must consider any submission made by an objector to the proposed Orders. In accordance with the Practice Note, by letter dated 15 June 2016 the Council's solicitor notified those persons who had objected to the original proposal of the proposed Consent Orders and the agreed conditions of consent. The letter also gave notice of the date of the hearing before the Court to consider the making of the proposed Consent Orders and invited any interested person to be heard at that time. 5. Mrs S Lavender, who resides at 20 Caledonia Crescent, Peakhurst, behind the development site, indicated to Council's solicitor that the she wished to address the Court hearing today. For that reason, these proceedings were commenced on-site at 9.30am. On arrival at the site I was advised that Mrs Lavender had changed her mind and no longer wished to address the Court orally. Instead, she relied upon her written objections lodged with the Council and included in the Council's Bundle of documents (Exhibit 3). As the Court was at the development site it took the opportunity to inspect the area before the hearing was reconvened in Court. Before the hearing resumed in Court I received some oral evidence from the parties' planning consultants addressing the objectors' concerns, particularly the trees said to be impacted upon by the proposal. The planning experts who addressed the Court onsite and later gave concurrent evidence at the Court in Sydney were the Applicant's consultant town planner, Mr Kirk Osborne, of DFP Planning Consultants; and the Council's Acting Director Planning and Development, Ms Tina Christy. Mr Osborne's written statement of evidence is (Exhibit C).