Siscus Holdings Pty Ltd v Georges River Council [2020] NSWLEC 1169

Land and Environment Court New South Wales

Medium Neutral Citation: Siscus Holdings Pty Ltd v Georges River Council [2020] NSWLEC 1169 Hearing dates: Conciliation conference on 25 February 2020, 11 March 2020 and 1 April 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [12] Catchwords: DEVELOPMENT APPLICATION – boarding house development – 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Siscus Holdings Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2019/191686 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Georges River Council (Council) of Development Application DA2018/0213 (the DA). In exercising the functions of consent authority the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 638.6m2 an allotment of land with an area of, and identified as Lot 58 DP 2013, at 14 English Street, Kogarah (the site). The DA, as originally submitted to Council on 31 May 2018, sought consent for construction of a boarding house in two separate 7 storey towers over a common basement parking level. The two towers contained a total of 40 double rooms (80 person occupancy), including one manager's room. Those plans were placed on public notification between 13 June 2018 and 6 July 2018. The application was subsequently amended, with revised plans submitted on 11 December 2018 (the Amended DA). The Amended DA reduced the number of boarding rooms to 34 (68 person occupancy) and number of storeys to six. The Amended DA plans were publicly notified between 19 December 2018 and 3 February 2019. The applicant commenced proceedings in the Court on 20 June 2019, based on the Amended DA. 3. 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 25 February 2020 and 11 March 2020. That conciliation conference was terminated on 19 March 2020. A second s34 conference was held on 1 April 2020. I presided over both conciliation conferences. The first conciliation conference on 25 February commenced with a view of the site and immediate surroundings. At the site view oral submissions were made by a number of residents, or their representatives, including residents of the adjoining apartment building at 16-18 English Street. 4. Prior to the second conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them. That agreement was based on further amended plans, prepared by BKA Architecture, and identified as Revision D dated 17.01.2020 (the Agreed Plans). 5. The main changes between the Amended DA plans and the Agreed Plans are: 1. Each of the towers are reduced from six storeys to partly four and partly five storeys, with the fifth part-level in each tower being occupied by a resident common room opening to a communal rooftop open space. 2. The total number of boarding rooms has been reduced from 34 to 19 (including manager's room). 3. The number of motorcycle and bicycle spaces has been reduced from 8 of each to 4 of each, with nine car spaces retained. 4. The footprint area of both towers has been reduced slightly, with additional landscaping provided in the front, rear and southern side boundary setbacks. 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 DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. Those matters and how they are satisfied are set out in in paragraphs 7 to 10 below.