Lateral Estate Pty Limited v Georges River Council [2019] NSWLEC 1082

Land and Environment Court New South Wales

Medium Neutral Citation: Lateral Estate Pty Limited v Georges River Council [2019] NSWLEC 1082 Hearing dates: Conciliation conference on 21 February 2019 Date of orders: 21 February 2019 Decision date: 21 February 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [12] below Catchwords: DEVELOPMENT 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 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Lateral Estate Pty Limited (Applicant) Georges River Council (Respondent) Representation: Solicitors: A Gadiel, Mills Oakley (Applicant) A Berry, Georges River Council (Respondent) File Number(s): 2018/201275 Publication restriction: No

Judgment 1. COMMISSIONER: The site for this appeal is known as 36 Bunyala Street Blakehurst and legally described as Lot 4 DP 516331. The site falls within the boundaries of Georges River Council (Council). Development Application DA2017/0649 (DA) sought consent for demolition of existing structures and the construction of a residential flat building development and associated work including specified tree removal on the site. 2. Sydney South Planning Panel (Panel) was the determining authority for the DA as the capital investment value exceeds $20m. While the Panel has been briefed a number of times on the matter, no determination had been made. The appeal is against the deemed refusal of the DA. 3. Subsequent to the appeal, the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 21 February 2019. I presided over the conciliation conference. 4. At the conciliation conference the parties evidenced agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision was for the grant of development consent, subject to conditions. The conditions involve revised plans which address Council's contentions to their satisfaction. 5. Council provided the Court with documents indicating that the Sydney South Planning Panel was also content with the changes now proposed. A short report by Ms H Wharton (Council's planning expert in this matter) to the Panel members, which worked through the Council's original contentions as to why the application should be refused, and why things were now satisfactory was provided to the Court. This report indicates, among other things, that previous contentions in regard to non-compliance with Floor Space Ratio and Height controls, in Kogarah Local Environmental Plan 2012, had been addressed with revised plans. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be twofold: (1) in regard to State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and (2) in regard to State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). I consider these jurisdictional questions in turn below. The parties advised there were no further jurisdictional questions. 7. Clause 102(3) of SEPP Infrastructure is concerned with ensuring the impact of road noise on residential accommodation proposed to be located near major road corridors is appropriately considered. It sets LAeq (noise) levels which are not to be exceeded in: (a) bedrooms and (b) elsewhere in the accommodation, generally. The parties took me to the specialist acoustic report prepared for the application which made particular reference to the SEPP and these standards and included recommendations to meet them. The parties demonstrated how the requirements of this report were incorporated into the proposed conditions (Condition 1). I am satisfied in regard to cl 102(3) of SEPP Infrastructure. 8. SEPP 55 is concerned with land contamination and remediation. Clause 7 requires a consent authority to consider whether land is contaminated, and if so to take certain further steps. The parties took me to the specialist site investigation report which indicated that the site was not considered contaminated and the conditions (Condition 23 in particular). Mindful of cl 7 of SEPP 55, I am satisfied that the issue has been appropriately considered and the conditions account for future possible risks. 9. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). 10. 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 also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders below have this effect. 11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application. 12. The Court orders that: 1. The applicant is granted leave to rely on the amended plans referred to in Annexure "A". 2. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in regard to the agreed amount of $13,000 within 28 days of the date of the signed agreement (agreement signed 21 February 2019). 3. The Appeal is upheld 4. Development application no 0649/2017 for the demolition of existing buildings and structures, tree removal, excavation, shoring, piling works and the construction of a residential flat development comprising 40 apartments, basement car parking and landscape works is determined by the grant of consent subject to the conditions in Annexure "B". ………………………. Peter Walsh Commissioner of the Court Annexure A - Part 1 - Architectural plans (17.8 MB, pdf) Annexure A - Part 2 - Landscape plans (5.40 MB, pdf) Annexure A - Part 3 - Stormwater plans (2.51 MB, pdf) Annexure B - Conditions (497 KB, pdf)