Cash Warwick Pty Ltd v Georges River Council [2018] NSWLEC 1609

Land and Environment Court New South Wales

Medium Neutral Citation: Cash Warwick Pty Ltd v Georges River Council [2018] NSWLEC 1609 Hearing dates: Conciliation conference on 12 November 2018 Date of orders: 26 November 2018 Decision date: 26 November 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [15] below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 Category: Principal judgment Parties: Cash Warwick Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Solicitors: M Sonter, Mills Oakley (Applicant) D Le Breton, HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/384934 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Cash Warwick Pty Ltd (the Applicant) lodged under former s 97AA, now s 8.9, of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Georges River Council (the Council) of a modification application, MOD2017/0169 (the application), to modify Development Consent DA 2016/99 pursuant to s 4.56 of the EPA Act. 2. The application proposed alterations to two approved residential flat buildings (RFBs), referred to as Building A and Building B, located at 832-836 King Georges Road and 51 Connells Point Road, South Hurstville, being Lots 45-49 in DP 1999 (the site). 3. The RFBs were granted consent by the Land and Environment Court in April 2017. Building A comprised 7 storeys fronting King Georges Road and Building B, 5 storeys fronting Connells Point Road. The RFBs contained a total of 67 apartments over a common basement car park. The development was modified with consent in December 2017 but the modifications comprised relatively minor design changes. The RFBs are now under construction. 4. The modifications the subject of the current appeal involve, in summary: lowering Building B and constructing an additional floor comprising an additional 242m² and 4 apartments; relocating a unit in Building B with a minor increase in overall floor space but a minor reduction at the ground floor level; and reconfiguring apartment sizes on the ground floor in Building A to add 2 more apartments and 13m². This results in an increase in the number of apartments from 67 to 73, a change in the mix of apartments, and an extra 258m² of floor space increasing the floor space ratio (FSR) from 2.49:1 to 2.6:1. The number of car parking and bicycle parking spaces remain as approved with one additional motor cycle space proposed. 5. The Council contended that the modified development exceeded the FSR permissible for the site under the Kogarah Local Environmental Plan 2012 (the LEP) with most of this in Building B. Whilst the Council accepted a variation request under cl 4.6 of the LEP was not required as the application was a modification application, nevertheless the additional FSR was considered overdevelopment given excess height had already been approved in the issuing of consent to the original development application. Further, no additional car parking was proposed and car parking would therefore be deficient for the number of dwellings proposed. 6. The Council was particularly concerned about the visual impact of amendments to the development on the Connells Point Road streetscape and on properties to the north, which have a lower height limit. Concern was also raised with the overshadowing effect on adjoining properties including the property to the south (53 Connells Point Road), the owner of which objected to both the original development and the proposed modification. 7. The Court arranged a conciliation conference under s 34 of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act and therefore I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties' decision. 9. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met. 10. In this regard, in documents provided to the Court and on the basis of the conciliation discussions, I was satisfied that the application had been notified, and submissions considered, in accordance with the requirements of s 4.56(1) of the EPA Act. 11. In this regard, it is appropriate to provide a summary of the basis of the conciliated outcome in terms of how the contentions, and issues raised by objectors, were resolved. 12. In essence, the plans accompanying the application were amended as a result of conciliation to address the contentions and concerns raised in the following ways: 1. Reducing the proposed number of additional apartments by two to provide a total of 71 rather than 73 apartments and reducing the amount of additional floor space (and therefore FSR proposed) with only some 100m² of additional floor space proposed; 2. Amending the layout of the storage and car parking area so that a surplus rather than a deficiency of car parking will now be provided; 3. Setting back the new level 6 in Building B to provide improved and acceptable solar access to neighbouring properties; and 4. Improving the treatment of the façade to Connells Point Road to address streetscape concerns 1. The parties provided an outline as to why the Court should be satisfied that the modification application, as amended during conciliation, would result in a development that was substantially the same development as the development for which consent was originally granted and before that consent was subsequently modified as required under s 4.56(1)(a) of the EPA Act. In this regard, I was so satisfied in particular given: 1. There is no change to the use, the configuration of the development as two RFBs, the general location and orientation of the buildings, or the access arrangements; 2. The development remains height compliant with the approved street wall heights retained and the additional upper level floor space recessed so that it will not be visible from the street; 3. There are no additional amenity impacts to neighbours with the extent of solar access available to the neighbouring properties retained relative to the approved development; and 4. The development remains compliant in terms of car parking provision. 1. In making the orders sought, I have also, as is required of consent authorities by s 4.56(1A) of the EPA Act, taken into consideration the relevant matters for evaluation of the application as is required under s 4.15 (1) of the EPA Act. 2. Accordingly, the Court orders that: 1. The Applicant is granted leave to rely on the amended plans and documents referred to in condition 1 of Annexure "A". 2. The appeal is upheld. 3. Modification application MOD2017/0169 which amends DA2016/99 (as modified on 15 December 2017) by: 1. Building A - Deletion of plant room and conversion of 2 x 3 bedroom units into four x 1 bedroom units (new total 54 units); 2. Building B - addition of two units to the fourth floor, set back of new level 6, deletion of strata room at ground floor, net increase in GFA of 116m² (new total 17 units); 3. Basement - reconfiguration of car park, deletion of storage to add 4 car spaces; at 832-836 King Georges Road and 51 Connells Point Road, South Hurstville is approved subject to the conditions contained in Annexure "A".