Land and Environment Court New South Wales Medium Neutral Citation: Zheng v Georges River Council [2020] NSWLEC 1228 Hearing dates: Conciliation conference on 15 May 2020 Date of orders: 22 May 2020 Decision date: 22 May 2020 Jurisdiction: Class 1 Before: Bish C Decision: Refer to orders at [30] Catchwords: DEVELOPMENT APPLICATION – boarding house – amenity – character – height standard non-compliance – cl 4.6 variation request – 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 Texts Cited: Kogarah Development Control Plan 2013 Category: Principal judgment Parties: Xiao Ping Zheng (Applicant) Georges River Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) S Hill (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 2019/290322 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2017/0616 by Georges River Council (hereafter the Council) for the demolition of existing structures and construction of a three storey boarding house of 15 rooms with parking on Lot 1 DP 1057110, also known as 137 Woniora Road, South Hurstville (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 May 2020. I presided over the conciliation conference. There were no objectors whom spoke at this conciliation. It is however acknowledged that one objector spoke at a previous (terminated) conciliation arranged by the Court, and their issues have been considered by the parties in the making of this agreement. 4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the supporting plans to the DA and the cl 4.6 written request seeking variation of the height development standard, to be relied upon in the granting of consent to the DA under appeal. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2017/0616 with conditions. 6. Pursuant to s 34(3) of the LEC Act, 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 and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2017/0616 with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Kogarah Environmental Plan 2012 (KLEP). In addition, the Kogarah Development Control Plan 2013 (KDCP) is of consideration to grant consent to the DA. 8. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans and the conditions of consent which address the relevant requirements for consideration. The proposed development provides sufficient parking for a 15 room boarding house with a manager, appropriate internal amenity and is consistent with the character of the local area. The parties agree that the requirements of SEPP ARH are satisfied, and specifically cll 29(2) and 30A which relate to contentions that are resolved. 9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 1060718M_02, dated 13 January 2020, relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 10. With regards to SEPP 55, the parties are satisfied that the proposed development complies, and specifically with cl 7, by the site investigation, the provision of a Remedial Act Plan (RAP) and by relying on conditions of consent requiring, among others: remediation works consistent with the RAP; tanking of the basement to prevent groundwater ingress during operation; and appropriate treatment/discharge of groundwater during construction. 11. The site is located within the R3 Medium Density Residential Zone, as described in the KLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the KLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are satisfied. 12. The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the KLEP. All other relevant development standards are satisfied. 13. It is accepted by the parties that a cl 4.6 written request for variation of the height standard is required for further consideration of the DA, pursuant to cl 4.6 of the KLEP, and that the Court must be satisfied of its consistency with the requirements of cl 4.6 to grant consent to the DA. 14. The written request for (height) variation explains that the height of the proposed development exceeds by a maximum 0.75m (8%) the height standard of 9m, as specified in cl 4.3 of the KLEP. This exceedance in height occurs primarily in portions of the building roof form, due to the existing slope and to allow sufficient internal amenity for residents without a reduced floor to ceiling height. 15. The cl 4.6 (height) written request explains that the exceedance in the height standard does not result in a development that is out of character with the local area and is not perceived adversely from the streetscape. The proposed development responds to the new zoning of the area and existing other buildings in the local area, which include large two storey residences. 16. According to the written request, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The proposed development is not inconsistent with the zone objectives or relevant development standard. The proposed building form provides an appropriate transition, with sufficient landscaped setbacks between the lower scale developments along Joffre Street and Woniora Road to the proposed building form. 17. The proposed height of the development satisfies the objectives of the zone and the height standard. As the proposed development, is in character with the local area, results in no adverse amenity impacts and satisfies the relevant height objectives, compliance with the height standard would be both unreasonable and unnecessary. 18. The written request considers that a variation of the height development standard, pursuant to cl 4.3 of the KLEP is therefore satisfied, and flexibility of the standard is justified. 19. Having reviewed the (cl 4.6) written request, I agree that the written request for variation of the height standard addresses the requirements of cl 4.6(3) of the KLEP by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. 20. The proposed development does not adversely affect the character of the local area and the visual perception of the front of the building in the streetscape and the length of the building is well articulated. Further to this, the area of the building resulting in height non-compliance is not predominantly visible from the street and does not result in loss of amenity, particularly overshadowing or privacy to adjoining properties. 21. The applicant's written request for variation of the height standard has adequately demonstrated that the proposed (height) exceedance is reasonable and there are sufficient environmental planning grounds. Therefore, cl 4.6(4)(a)(i) of the KLEP is satisfied. 22. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R3 zone) and the height (cl 4.3) standard, as established in the KLEP. The breach is limited to portions of the roof that do not cause undue concern to surrounding residents, including those whom raised objections. The height non-compliance does not result in adverse impact to the residents of the proposed development, adjoining properties or the character of the local area. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii). 23. I accept the applicant's explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) of the EPA Act. 24. I am satisfied that the requirements of cl 4.6 of the KLEP have been addressed and that a variation in the height standard, as provided in cl 4.3, should be granted. 25. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the KDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would result in the refusal of the DA. 26. The parties agree that the requirements of the KDCP are complied with, based on the amended plans, conditions of consent and a Plan of Management. The proposed development was publicly notified in accordance with the KDCP. During the initial notification period, five submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions. 27. Based on the amended plans and supporting documents to the DA including a (cl 4.6) written request for variation of the height development standard, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. 28. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2017/0616 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 29. 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 to dispose of the proceedings in accordance with the parties' decision. 30. The Court orders that: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents: Amended Plans Reference Description Revision Date Architectural Plans DA01 Site Analysis Plan E 13/01/20 DA02 Basement Plan & Site/Ground Floor Plan G 13/01/20 DA03 First Floor Plan & Second Floor Plan E 13/01/20 DA04 Roof Plan & Section A-A E 13/01/20 DA05 Elevations F 13/01/20 DA06 Streetscape Elevation & Driveway Profile E 13/01/20 DA07 Shadow Diagrams (June 22) E 13/01/20 DA08 Shadow Diagrams (March/September 22) E 13/01/20 DA09 GFA Calculations & Room Calculations B 13/01/20 DA10 Solar Access Common Room B 13/01/20 DA11 Shadow Diagrams Common Room A 13/01/20 DA12 Schedule of Finishes Elevations A 13/01/20 Stormwater Plans 17MB7612/DA01 First & Second Floor Drainage Plan A 20/11/17 Sheet 1 of 3 17MB7612/DA01 Basement Drainage Plan A 20/11/17 Sheet 2 of 3 17MB7612/DA01 Drainage Details Plan A 20/11/17 Sheet 3 of 3 17MB7612/DA03 Basement and Ground Floor Drainage Plan D 11/12/19 Sheet 3 of 4 Landscape Plans 17-3590 LO1 Landscape Plan F 20/01/20 Planting Plan 17-3590 LO1 Landscape Plan F 20/01/20 Level and Surfaces Plan Amended Documents Author Description Rev Date Max Brightwell BASIX Certificate 9997-GR-1-1 - 09/01/20 BMA Urban Clause 4.6 Variation Request 1 20/01/20 Hemanote Consultants Traffic, Parking & Vehicular Access report - 05/12/19 Reditus Groundwater Management Plan 1 11/02/20 Alliance Geotechnical Combined Stage 1 Preliminary Site Investigating & Stage 2 Detailed Site Investigation - 13/11/19 Alliance Geotechnical Preliminary Geotechnical Investigation Report - 09/01/20 Alliance Geotechnical Remedial Action Plan 1 05/02/20 BMA Urban Operational Plan of Management (POM) 16/04/20 1. The Applicant's written request pursuant to clause 4.6 of the Kogarah Local Environmental Plan 2012 to justify the contravention of the development standard relating to the height of buildings under clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $12,000 within 28 days of these orders. 3. The appeal is upheld. 4. Development Consent be granted to DA2017/0616 for the demolition of existing structures and construction of 3 storey boarding house comprising 14 rooms plus a manager's room and basement car parking with 8 car spaces and 3 motorbike spaces at 137 Woniora Road, South Hurstville subject to conditions contained in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (pdf) Architectural Plans (pdf) Landscape Plans (pdf) ********** Amendments 05 June 2020 - Typographical error on the cover sheet corrected. 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: 05 June 2020