AJC United Investment Pty Ltd v Georges River Council

[2022] NSWLEC 1343

Land and Environment Court

New South Wales

Medium Neutral Citation:

AJC United Investment Pty Ltd v Georges River Council [2022] NSWLEC 1343

Hearing dates:

Conciliation conference on 21 June 2022

Date of orders:

01 July 2022

Decision date:

01 July 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant in these proceedings to amend the name of the applicant to AJC United Investment Pty Ltd ACN 61 087 314 869.

(2) The Applicant’s written request prepared pursuant to clause 4.6 of HLEP dated June 2022 seeking to justify the breach of the development standard pertaining to the minimum lot size for subdivision pursuant to clause 4.1 of HLEP is upheld.

(3) The Applicant’s written request prepared pursuant to clause 4.6 of HLEP dated June 2022 seeking to justify the breach of the development standard pertaining to the minimum lot size for dual occupancies pursuant to clause 4.1A of HLEP is upheld.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application No. DA2021-0021 for Demolition Works, Construction of a Dual Occupancy and Torrens Title Subdivision at 3 Cooloongatta Road, Beverly Hills (Lot 2 in Deposited Plan 1249414) subject to the Conditions of Consent which are annexed hereto and marked “A”.

Catchwords:

APPEAL – development application – detached dual occupancy and subdivision of land – breach of minimum lot size for dual occupancy development – breach of minimum subdivision lot size – complies with new local environmental plan that does not apply due to savings provision – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Georges River Local Environmental Plan 2021 cll 1.8A, 4.1A

Hurstville Local Environmental Plan 2012 cll 4.1, 4.1A, 4.6

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Chen Yue Cao (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Berveling (Respondent)

Solicitors:
Adam & Dean Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2022/55539

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a detached dual occupancy development, and torrens title subdivision of the land, at 3 Cooloongatta Road, Beverly Hills. 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 [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 21 June 2022. 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 signed agreement was subsequently provided to the Court on the same date, and was formally filed on 28 June 2022. The agreement was reached as a result of an amendment to the development application, which was lodged on the NSW Planning Portal on 27 June 2022 with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended development application includes amended written requests to vary the minimum lot size development standards for the construction of a dual occupancy and for the subdivision of land, amended architectural plans that now provide for a design with compliant setbacks and the deletion of rear facing balconies, amended landscape plans and an amended Arboricultural Impact Assessment Report.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement dated 21 June 2022 that sets out the matters on which the Court must form an opinion or reach a state of satisfaction prior to the grant of development consent.

5. 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:

• Development for the purposes of a dual occcupancy is permissible in the R2 Low Density Residential zone in which the site is located, pursuant to the Hurstville Local Environmental Plan 2012 (HLEP 2012). Although the HLEP 2012 has been repealed by the Georges River Local Environmental Plan 2021 (GRLEP), it continues to apply to the development application by virtue of the savings provision in cl 1.8A of the GRLEP.

• I am satisfied that consent should be granted notwithstanding the contravention of the minimum lot size for dual occupancy developments. Pursuant to cl 4.1A of the HLEP 2012, the minimum lot size for a dual occupancy is 650m². The size of the Site is 643.7m², representing a 0.97% variation from the minimum requirement. I am satisfied that:

1. The written request of ABC Planning dated June 2022, lodged pursuant to cl 4.6 of the HLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach of the minimum lot size by demonstrating that the lot is of a sufficient size to accommodate the proposed development in a manner that is compliant with the controls in the applicable development control plan and does not cause any adverse amenity impacts and that the breach is indiscernible to the casual observer. These grounds justify the breach given that compliance with the standard would require restricting the use of the site to a single dwelling in circumstances where it can accommodate a dual occupancy that is otherwise compliant with the applicable controls.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the variation to the minimum lot size is minor and will not be noticeable when viewed from the public domain, and does not lead to any impact beyond that which would be contemplated by a dual occupancy development on a compliant site.

3. The proposal is in the public interest because:

1. Based on the content of the written request, it is consistent with the objectives of the zone, and

2. It is consistent with the objective of the development standard on the basis that the non-compliance is so minor that the size and shape of the land is nonetheless able to provide adequate amenity for occupants of the site and its surrounds.

• I am satisfied that consent should be granted notwithstanding the contravention of the minimum subdivision lot size. Pursuant to cl 4.1 of the HLEP 2012, a minimum subidivision lot size of 450m² applies to subdivision of the site. The proposed lot sizes of 322.3m² and 321.4m² represent a departure of 127.7m² and 128.6m² from the standard. I am satisfied that:

1. The written request of ABC Planning dated June 2022, lodged pursuant to cl 4.6 of the HLEP 2012, adequately establishes sufficient environmental planning grounds that justify the breach of the minimum subdivision lot size by demonstrating that cl 4.1A(2)(a) of the GRLEP, which applies to any development application that is now made for the subdivision of the site, allows development consent to be granted for the subdivision of land on which there is a dual occupancy, if the lot size for each resulting lot will be at least 300m². As the proposed lot sizes comply with this minimum lot size, and would therefore be compliant if the development application was lodged under the current GRLEP, this is an environmental planning ground that justifies the contravention that arises under cl 4.1 of the HLEP 2012.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the design of the dual occupancy is compatible with the streetscape along Cooloongatta Road, it does not compromise the ability of the site to achieve compliance with the controls in the applicable development control plan, and it is consistent with the minimum subdivision lot size for dual occupancies under the GRLEP.

3. The proposal is in the public interest because, based on the content of the written request, it is consistent with the objectives of the zone and of the development standard.

• The proposed development complies with the other applicable development standards in the HLEP 2012 for height and floor space ratio.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for residential purposes, it is unlikely to be contaminated.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

6. 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)).

7. 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.

8. The Court notes that:

1. Georges River Council, as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW), agrees to the Applicants amending development application no. DA2021/0021 (amended DA) to rely on the following amended plans and additional material as listed in the Table to condition 1 of the Conditions to Consent being Annexure A to the orders.

2. The parties agree that the two Clause 4.6 Requests referred to in orders (2) and (3) below are well founded.

3. The amended DA was uploaded to the NSW Planning Portal on 27 June 2022.

4. The Development Application was lodged with the respondent on 23 December 2020 by AJC United Investment Pty Ltd ACN 61 087 314 869. Consent to the lodgement of the DA was given on 22 November 2020 by Ms Yuwei Wang, then owner of the Site (and also by Mr Chun Yue Cao and Ms Yin Zhong, owners of 5 Cooloongatta Road Beverly Hills). Consent has also been given by the current owner of the Site, Mr Ahmed Homsi dated 27 October 2021.

5. Whereas these proceedings have been commenced by Mr Cao. The respondent Georges River Council agrees to the name of the Applicant in these proceedings being amended to AJC United Investment Pty Ltd ACN 61 087 314 869.

Orders

9. The Court orders that:

1. Leave is granted to the Applicant in these proceedings to amend the name of the applicant to AJC United Investment Pty Ltd ACN 61 087 314 869.

2. The Applicant’s written request prepared pursuant to clause 4.6 of HLEP dated June 2022 seeking to justify the breach of the development standard pertaining to the minimum lot size for subdivision pursuant to clause 4.1 of HLEP is upheld.

3. The Applicant’s written request prepared pursuant to clause 4.6 of HLEP dated June 2022 seeking to justify the breach of the development standard pertaining to the minimum lot size for dual occupancies pursuant to clause 4.1A of HLEP is upheld.

4. The appeal is upheld.

5. Development consent is granted to Development Application No. DA2021-0021 for Demolition Works, Construction of a Dual Occupancy and Torrens Title Subdivision at 3 Cooloongatta Road, Beverly Hills (Lot 2 in Deposited Plan 1249414) subject to the Conditions of Consent which are annexed hereto and marked “A”.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (407199, pdf)

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Decision last updated: 01 July 2022