Al Abrahim v Georges River Council

[2020] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:	Al Abrahim v Georges River Council [2020] NSWLEC 1151
Hearing dates:	Conciliation conference on 12 March 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The written request seeking a variation of the development standard for the height of buildings set out in clause 4.3 of the Kogarah Local Environmental Plan 2012 on the site set out in "Amended Clause 4.6 Variation Request – Height of Buildings (CL 4.3 KLEP 2012)" variation request prepared by BMA Urban dated 11 March 2020 pursuant to the Kogarah Local Environmental Plan 2012 is upheld. (2) The appeal is upheld. (3) Development Application No. DA2018/0252, as amended, for the demolition of all existing structures on-site, soil remediation and earthworks and construction of a five (5) storey mixed use building, comprising four (4) commercial tenancies at ground level, 38 apartments over five (5) levels and two (2) levels of basement car parking containing eighty-three (83) car parking spaces, nineteen (19) bicycle spaces and one (1) loading bay at 505 – 507 Rocky Point Road, Sans Souci NSW 2219 (Strata Lots CP/SP44919 and CP/SP49146) is approved subject to the conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environment Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Al Abrahim (Applicant) Georges River Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) S Berveling (Respondent)   Solicitors: One Group Legal (Applicant) Georges River Council (Respondent)
File Number(s):	2018/317003
Publication restriction:	No

Judgment

1. COMMISSIONER: Al Abrahim (the Applicant) has appealed the deemed refusal by Georges River Council (the Respondent) of his development application (DA 2018/0252) which sought consent for the demolition of existing structures, and construction of a five storey mixed use building, containing four commercial units, residential dwellings, and two levels of basement car parking (the Proposed Development), at 505-507 Rocky Point Road, Sans Souci (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

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 has been held on 12 March 2020, and I have presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions.

5. 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 development application.

6. The parties have explained how the Applicant’s amended plans have satisfied relevant jurisdictional matters, including in relation to the zoning of the land, land contamination under State Environmental Planning Policy No 55—Remediation of Land, and the development standard pertaining to the maximum permitted floor space ratio, and the compliance of the Applicant’s proposed development, as amended, with those standards.

7. The parties have further explained how a breach of the height of buildings development standard in cl 4.3 in KLEP control has been addressed through the preparation of a written request under cl 4.6 of Kogarah Local Environment Plan 2012 (KLEP) to vary that height of buildings standard.

8. The Parties submitted, and I agree, that the written request to vary the height of development standard in KLEP is well founded because:

1. compliance with the standard is unreasonable or unnecessary because the Proposed Development would achieve the objectives of the standard, notwithstanding the exceedance;

2. there are sufficient environmental planning grounds to justify the exceedance of the standard;

3. the proposed Development is in the public interest because it is consistent with:

1. the objectives for development within the B1 zone in which the Proposed Development is to be carried out; and

2. the objectives of the height of buildings standard in cl 4.3 of KLEP.

9. I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EPA Act can be exercised by the Court.

10. I am also satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. 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.

12. The Court orders:

1. The written request seeking a variation of the development standard for the height of buildings set out in clause 4.3 of the Kogarah Local Environmental Plan 2012 on the site set out in "Amended Clause 4.6 Variation Request – Height of Buildings (CL 4.3 KLEP 2012)" variation request prepared by BMA Urban dated 11 March 2020 pursuant to the Kogarah Local Environmental Plan 2012 is upheld.

2. The appeal is upheld.

3. Development Application No. DA2018/0252, as amended, for the demolition of all existing structures on-site, soil remediation and earthworks and construction of a five (5) storey mixed use building, comprising four (4) commercial tenancies at ground level, 38 apartments over five (5) levels and two (2) levels of basement car parking containing eighty-three (83) car parking spaces, nineteen (19) bicycle spaces and one (1) loading bay at 505 – 507 Rocky Point Road, Sans Souci NSW 2219 (Strata Lots CP/SP44919 and CP/SP49146) is approved subject to the conditions in Annexure ‘A’.

………………………

M Chilcott

Commissioner of the Court

Annexure A (344 KB)

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Decision last updated: 01 April 2020