Land and Environment Court New South Wales Medium Neutral Citation: Brightstone Developments Pty Ltd v Georges River Council [2019] NSWLEC 1610 Hearing dates: Conciliation conference on 6 December 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – 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 No 55 – Remediation of Land Category: Principal judgment Parties: Brightstone Developments Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: N Sandstrom (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/258053 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal concerning a development application for the construction of multi dwelling housing comprising 14 two-storey dwellings with basement car parking at 1-5 Rickard Road, South Hurstville. 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 6 December 2019. I presided over the conciliation conference. 3. At 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 amended development application reduces the widths of townhouses 7-14 from what was originally proposed, which accommodates a greater space for landscaping on the eastern side of the site. The amended development application also, inter alia, reduces the proposed hardstand area and increases eastern and western setbacks for the rear row of dwellings. 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 site is zoned R3 Medium Density Residential, pursuant to the Kogarah Local Environmental Plan 2012 ("KLEP 2012"), in which multi-dwelling houses are permitted with consent. * The proposed development complies with the applicable development standards in the KLEP 2012 for height, floor space ratio and minimum lot size. * 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. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated. 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 upon the following amended plans and documents: Description Reference No. Date Revision Prepared by Cover Sheet N/A 11/19 11 Derek Raithby Architecture Site Analysis Plan D1711 11/19 11 Derek Raithby Architecture Drawing 1 Basement Floor Plan D1711 10/19 10 Derek Raithby Architecture Drawing 2 Ground Floor Plan D1711 11/19 11 Derek Raithby Architecture Drawing 3 First Floor Plan D1711 11/19 11 Derek Raithby Architecture Drawing 4 Roof Plan D1711 11/19 11 Derek Raithby Architecture Drawing 5 Elevations D1711 11/19 11 Derek Raithby Architecture Drawing 6 Sections D1711 11/19 11 Derek Raithby Architecture Drawing 7 Adaptable Units D1711 9/17 6 Derek Raithby Architecture Drawing 10 Demolition Plan D1711 9/17 6 Derek Raithby Architecture Drawing 11 Sediment Control Plan D1711 9/17 6 Derek Raithby Architecture Drawing 12 Driveway Profile D1711 9/17 6 Derek Raithby Architecture Drawing 13 Finishes Schedule D1711 10/19 7 Derek Raithby Architecture Drawing 14 Fence Detail D1711 10/19 1 Derek Raithby Architecture Drawing 31 Cover Sheet LA-00 05.11.19 D - 04 Derek Raithby Architecture Landscape Plan LA-01 05.11.19 D - 04 Derek Raithby Architecture Landscape Plan LA-02 05.11.19 D - 04 Derek Raithby Architecture Landscape Plan LA-03 05.11.19 D - 04 Derek Raithby Architecture Landscape Section and Plan Section LA-04 05.11.19 D - 04 Derek Raithby Architecture Landscape Details LA-05 05.11.19 D - 04 Derek Raithby Architecture Landscape Specifications LA-06 05.11.19 D - 04 Derek Raithby Architecture Landscape Specifications LA-07 05.11.19 D - 04 Derek Raithby Architecture 1. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application in the amount of $3,500.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Application no. DA2017/0460 for the construction of multi dwelling housing comprising 14 x two storey dwellings with basement car parking at 1 – 5 Rickard Road, South Hurstville is approved subject to the conditions contained in Annexure "A" hereto. ……………………….. J Gray Commissioner of the Court Annexure A (174 KB, pdf) Architectural Plans (15.4 MB, 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: 09 December 2019