Land and Environment Court New South Wales Medium Neutral Citation: Thanos v Georges River Council [2019] NSWLEC 1463 Hearing dates: Conciliation conference on 23 July 2019 Date of orders: 02 October 2019 Decision date: 02 October 2019 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: NSW Government Department of Planning, 'Development Near Rail Corridors and Busy Roads- Interim Guideline' (2008) Category: Principal judgment Parties: Peter Thanos (Applicant) Georges River Council (Respondent) Representation: Counsel: T Messenger (Solicitor) (Applicant) V McGrath (Solicitor) (Respondent) Solicitors: Messenger & Messenger Pty Ltd (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/363618 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal concerning a development application for the demolition of a single storey building and the construction of a part three and part four storey building containing ground floor business/office premises and a boarding house at 31 Regent Street, Kogarah. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 23 July 2019. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The proposal has been designed as a 3 storey building to address Regent Street and 4 storeys with additional lift overrun at the rear addressing Post Office Lane. The amended development application includes proposed access to the car parking area from Post Office Lane, and provides 4 car parking spaces in the form of a car stacker. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development works are for the purpose of a boarding house and commercial premises, which are permissible uses within the B4 Mixed Use zone in which the site is located, pursuant to the Kogarah Local Environmental Plan 2012 ("KLEP 2012"). * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The maximum height for the site pursuant to cl 4.3(2) of the KLEP 2012 is 9m at the front portion of the site (fronting Regent Street), and 15m at the rear of the site (on Post Office Lane). There are three components to the breach in the 9m height limit. The first is a breach of 0.469m at the Regent Street frontage (NW Corner) and 0.30m (SW Corner); the second is a breach of 1.464m at the edge of the 3 storey element at edge of the transition from the 9m to the 15m height limit which extends along from the Regent Street frontage (i.e. tapering from an exceedance of 0.499m to 1.464m); and the third is a breach of 4.572m where the 4 storey element extends into the 9m height limit. The 4 storey element that extends into the 9m height limit is a 2.134m wide section of the fire stairs at the third storey and extends into the 9m height limit by 0.719m at the fourth storey. There is no breach of the 15mheight limit. I am satisfied that consent should be granted notwithstanding the contravention of this standard, for the following reasons: 1. I am satisfied that the written request, lodged pursuant to cl 4.6 of the KLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach is caused by the topography of the land and allows there to be a height transition from the 6 storey commercial building to the rear, the 4 storey element on the rear of the subject site and the 2 storey commercial building adjoining the site to the south. The breach also allows better amenity for the commercial premises, allows the building to present to the street in a manner consistent with the adjoining buildings, and allows the lift core to be located towards the front of the site so that there is sufficient space for the car stacker and for queuing of vehicles without affecting Post Office Lane. 2. I am satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. 3. I am satisfied, based on the content of the request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The applicant provided a Detailed Site Investigation prepared by Ei Australia dated 9 July 2019. The agreed conditions of consent incorporate the recommendations of the Detailed Site Investigation, and I am therefore satisfied that the land is suitable for the purpose for which the development is proposed to be carried out. * For the purposes of cl 87(3) of the State Environmental Planning Policy (Infrastructure) 2007, the applicant provided an Addendum to DA Acoustic Report dated 23 May 2019, explaining that the proposed development is located approximately 130m away from a train line, and therefore a train noise assessment is not required, per the NSW Government Department of Planning document titled 'Development Near Rail Corridors and Busy Roads- Interim Guideline' (2008). * Consideration has been given to whether the boarding house is compatible with the character of the local area, pursuant to cl 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009. The form of the development, being a ground floor business/office premises with a boarding house above that is limited to two storeys, plus a communal room and terrace on the rooftop, is consistent with the existing and likely future character of the precinct. 1. 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 requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. Leave is granted to the Applicant to rely on the following amended material: 1. Written Request for Exception to the Height Development Standard in the Kogarah Local Environmental Plan 2012, Proposed Office and Boarding House Development, 31 Regent Street, Kogarah, prepared by DFP Planning Consultants dated 16 September 2019, 2. Boarding House Plan of Management, Issue F, prepared by Peter Thanos (Boarding House Operator) dated September 2019, 3. Hydraulic Services, Coversheet, Legend & Notes, Drawing No. H5500, Revision B, dated 09/09/19, 4. Hydraulic Services, Stormwater Concept Design, Drawing No. H5501, Revision C, dated 09/09/19, 5. Letter from Traffic Solutions Pty Ltd dated 30 August 2019 and attachments, 6. Letter from Traffic Solutions Pty Ltd dated 9 August 2019 and attachments, 7. Letter from Traffic Solutions Pty Ltd dated 18 July 2019 and attachments, 8. AS/NZ 28901, B85 and B99 design cars swept turning paths dated 27/08/19, Dwg No. 2, 9. AS/NZ 28901, B85 and B99 design cars swept turning paths dated 27/08/19, Dwg No. 3, 10. Ground Floor Plan + First Floor Plan, Drawing No. DA_100, Issue E, dated 23 August 2019, 11. Second Floor Plan + Third Floor Plan, Drawing No. DA_110, Issue E, dated 23 August 2019, 12. Roof Plan, Drawing No. DA_120, Issue E, dated 23 August 2019, 13. Elevations, Drawing No. DA_200, Issue E, dated 23 August 2019, 14. Section + Schedule of Finishes, Drawing No. DA_201, Issue E, dated 23 August 2019, 15. FSR Calculations, Drawing No. DA_300, Issue E, dated 23 August 2019, 16. Shadow Diagrams 01.A 21st June, Drawing No. 400, Issue E, dated 23 August 2019, 17. Shadow Diagrams 01.B 21st June, Drawing No. 400, Issue E, dated 23 August 2019, 18. Shadow Diagrams 02 21st March, Drawing No. 401, Issue E, dated 23 August 2019, 19. Shadow Diagrams Common Areas 21st June, Drawing No. 403, Issue E, dated 23 August 2019, 20. Landscaping Plan + Details, Drawing No. DA_500, Issue E, dated 23 August 2019, 21. BASIX Certificate No.: 1033481M dated 19 August 2019, 22. Detailed Site Investigation prepared by Ei Australia dated 9 July 2019, and 23. Addendum to DA acoustic report dated 23 May 2019. 1. The Applicant is to pay the Respondent's costs thrown away as a result of amending the development application under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $9,270.00, to be paid within 28 days of the date of these orders. 2. The written request prepared by DFP Planning Consultants, and dated 16 September 2019, pursuant to cl 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) in relation to cl 4.3 of the KLEP has been considered and the necessary state of satisfaction under cl 4.6(4) of the KLEP has been met. Consequently, the written request is well founded and upheld. 3. The appeal is upheld. 4. Development consent is granted to DA2018/0214 for the demolition of a single storey building and construction of a part three and part four storey building containing ground floor business/office premises and a boarding house with ten rooms for eighteen lodgers and on-site parking accessed from Post Office Lane, at Lot 15 DP 1397, 31 Regent Street, Kogarah, subject to the conditions of consent set out in Annexure 'A'. …………………………… J Gray Commissioner of the Court Annexure A (481 KB) Plans (5.43 MB) ********** 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: 09 October 2019