CA Camperdown Pty Ltd v Georges River Council [2019] NSWLEC 1109

Land and Environment Court New South Wales

Medium Neutral Citation: CA Camperdown Pty Ltd v Georges River Council [2019] NSWLEC 1109 Hearing dates: Conciliation conference on 15 March 2019 Date of orders: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: See [21] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; exceedance of the height of buildings development standard. Legislation Cited: Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: CA Camperdown Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Solicitors: A Landro, Colin Biggers & Paisley Lawyers (Applicant) A Epstein, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/213640 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2017/0421 for an 8 storey mixed use development containing 52 residential apartments, retail/commercial tenancies and 2 and 3 levels of basement car parking (the proposal) at 42-46 Connells Point Road and 2-6 Allen Street, South Hurstville (the site) by Georges River Council (the Council). 2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 March 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties. The agreement included amendments to the proposal, as follows: * The bulk and scale of the building envelope has been reduced including stepping the upper levels by reducing the footprint of each upper level progressively; * The number of apartments has been reduced from 57 to 52; and * A rooftop garden and common open space area has been added at the rooftop and the lift core has been extended to provide access to the rooftop garden and common open space area. The extension of the lift core, including the fire stair, exceeds the height of buildings development standard for the site. 1. 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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 4.6 of the Kogarah Local Environmental Plan 2012 (LEP 2012).