Land and Environment Court New South Wales Medium Neutral Citation: Abrahim v Georges River Council [2019] NSWLEC 1135 Hearing dates: Conciliation conference on 22 March 2019 Date of orders: 01 April 2019 Decision date: 01 April 2019 Jurisdiction: Class 1 Before: Bish C Decision: See [13] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Kogarah Local Environment Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: Kogarah Development Control Plan 2013 Apartment Design Guide 2015 Category: Principal judgment Parties: Al Abrahim (Applicant) Georges River Council (Respondent) Representation: Solicitors: J Antonopoulos, One Group Legal Pty Ltd (Applicant) A Berry, Georges River Council (Respondent) File Number(s): 2018/114721 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal by Georges River Council (hereafter the Council) of Development Application (DA) 2017/0218, which seeks to demolish existing structures, and construct a seven storey residential flat building with parking, on Lots 20 and 21, Section 17 DP 1963, also known as 1-3 John Street, Kogarah Bay. 2. With regards to removal from the site, the proposed development seeks to demolish two detached dwelling houses, associated outbuildings and a pool. Further to this, a total of 14 trees are proposed to be removed, although only three trees require approval under this DA. With regards to construction, the DA seeks to construct 23 units within the seven storey building and provide two levels of basement parking for: 37 resident car spaces; five visitor car spaces; three motorbike spaces; and 15 bicycle spaces. 3. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 22 March 2019. I presided over the conciliation conference. There were no objections heard at this conciliation, although it is acknowledged that nine submissions were received by the respondent during the notification period. The issues raised by these objectors were considered by the parties in assessment of the proposed development. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 2017/0218 with conditions. 6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 2017/0218 under appeal with conditions. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) supported by the Apartment Design Guide (ADG); Kogarah Local Environment Plan 2012 (KLEP 2012); and Kogarah Development Control Plan 2013 (KDCP 2013). 8. With regards to the KLEP 2012, the parties have agreed that the proposed development does not contravene any development standards and resolves the contentions, therefore satisfies the requirements of the KLEP 2012 as follows: 1. Cl 2.3 - the site is located within an R3 Medium Density Residential zone. The proposed residential flat building is permissible in the zone and is not inconsistent with the zone objectives. 2. Cll 4.3 and 4.4 – based on the further supporting information and amended plans, the proposed development complies with height and floor space ratio (FSR) standards. 1. The parties agree that based on the amended plans there is no inconsistency with the objectives of the SEPP 65 and a statement of compliance with design quality principles has been provided for the proposed development, which is consistent with the requirements of cl 30. Therefore, the related contentions are resolved. 2. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the KDCP 2013 are resolved to the satisfaction of the parties, specifically for setbacks relating to transition at the front of the site and to the adjoining R2 zone. 3. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA, based on the amended plans with supporting documents and provided for in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979. 4. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision. 5. The Court orders: 1. The Applicant is granted leave to rely on the amended plans copies of which are marked Annexure "A" for the purpose of the development application. 2. The Applicant is to pay the Respondent's costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $12,000 within 28 days of the date of this agreement. 3. The appeal is upheld. 4. Development Application No: DA-2017/0218 for the demolition of two dwellings, outbuildings and a pool and construction of a seven storey residential flat building containing 22 units and two levels of basement car parking with 42 car spaces and five visitor spaces in respect of the property known as 1 John Street, Kogarah Bay NSW and 3 John Street, Kogarah Bay NSW being the whole of the land contained in folio identifiers 20/17/1963 and 21/17/1963 is determined by the grant of consent subject to the conditions in Annexure "B". ………………………. Sarah Bish Commissioner of the Court Annexure A (12.0 MB, pdf) Annexure B (428 KB, pdf) ********** 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: 01 April 2019