Av Jennings SPV No. 19 Pty Ltd v Georges River Council

[2020] NSWLEC 1283

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AV Jennings SPV No. 19 Pty Ltd v Georges River Council [2020] NSWLEC 1283

Hearing dates:

Conciliation conference on 19 June 2020

Date of orders:

01 July 2020

Decision date:

01 July 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on the amended plans and documents referred to in the modified conditions of development consent set out in Annexure A.

(2) The Applicant is to pay the respondent’s costs of $10,000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the execution of this Agreement.

(3) The appeal is upheld.

(4) The modification application lodged directly with the Court on 15 May 2019 to modify development consent No. DA9/2017/112/1, which the Court granted by way of orders made on 20 September 2018, for the construction of a residential flat building comprising fifty one (51) residential dwellings and six (6) serviced apartments over three (3) levels of basement parking for sixty three (63) car parking spaces at 2 – 10 Palmerston Street, Kogarah is determined by approving the modifications as set out in the plans and documents listed at Condition 1 in Annexure B.

(5) As a consequence of (4) above, Development Consent No. DA9/2017/112/1 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – 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 (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

Kogarah Development Control Plan 2013

Category:

Principal judgment

Parties:

AV Jennings SPV No. 19 Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
T Neal (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)

Solicitors:
Colin Biggers & Paisley (Applicant)
Georges River Council (Respondent)

File Number(s):

2019/152130

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of the modification application of an existing development consent, DA9/2017/112/1 by Georges River Council (hereafter the Council), which as amended, seeks construction of a residential flat building comprising fifty one residential dwellings and six serviced apartments, with basement parking for 63 cars on Lots 51, 52 and 56 in Section A of DP 1397, Lot 1 DP 908581 and Lot 1 DP 908582, also known as 2-10 Palmerston Street, Kogarah (hereafter the site).

2. The site is currently occupied vacant.

3. This Class 1 appeal is made under ss 4.55(2) and (8) of the Environmental Planning and Assessment Act 1979 (EPA Act), as the Land and Environment Court (the Court) granted consent to DA9/2017/112/1.

4. 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 19 June 2020, and adjourned until 23 June 2020 when the agreement was filed. I presided over the conciliation conference. There were no objectors heard at the conciliation.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. This decision is to uphold the appeal and grant consent to modify DA9/2017/112/1, based on conditions and amended plans relied upon.

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 4.55(8) of the EPA Act to grant consent to modify DA9/2017/112/1, with conditions. The proposed works were described to the Court, as shown in the amended plans attached to the s34 agreement, and upon which the Court relies to consent to this agreement.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(2) of the EPA Act, as: State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Kogarah Local Environmental Plan 2012 (KLEP); and Kogarah Development Control Plan 2013 (KDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

8. The parties agree that the relevant provisions of the SEPP BASIX have been satisfied, as an updated BASIX certificate had been prepared in respect of the amended material and is included in the amended plans relied upon.

9. The parties also agree that the requirements of the SEPP 65 have been satisfied, and specifically cl 29(2). The parties agree that the amended plans relied upon and the conditions of consent address the requirements of SEPP 65 and result in minimal change to the approved design.

10. The site is zoned R4 High Density Residential, pursuant to the KLEP. The proposed development with modifications is permissible and consistent with the objectives of the zone. The parties agree that the relevant requirements of the KLEP are satisfied, by the supporting documents and amended plans, to modify the approved consent, as sought under this appeal.

11. Based on the amended plans and supporting documents assessed under this appeal, the contentions that relate to the controls of the KDCP are resolved to the satisfaction of the parties. The respondent confirms that notification of the application under appeal was made pursuant to the KDCP.

12. The parties agree that the proposed modification is substantially the same as previously approved and notified, as required, with issues raised by residents in submission resolved to their satisfaction. The respondent, as consent authority, agrees that the requirements of ss 4.55(2)(b) and (c) are satisfied.

13. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the modification sought under this appeal to DA9/2017/112/1, based on the amended plans and conditions of consent, satisfies the requirements of ss 4.55(2) and (8) of the EPA Act.

14. 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.

15. The Court orders:

1. The Applicant is granted leave to rely on the amended plans and documents referred to in the modified conditions of development consent set out in Annexure A.

2. The Applicant is to pay the respondent’s costs of $10,000.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the execution of this Agreement.

3. The appeal is upheld.

4. The modification application lodged directly with the Court on 15 May 2019 to modify development consent No. DA9/2017/112/1, which the Court granted by way of orders made on 20 September 2018, for the construction of a residential flat building comprising fifty one (51) residential dwellings and six (6) serviced apartments over three (3) levels of basement parking for sixty three (63) car parking spaces at 2 – 10 Palmerston Street, Kogarah is determined by approving the modifications as set out in the plans and documents listed at Condition 1 in Annexure B.

5. As a consequence of (4) above, Development Consent No. DA9/2017/112/1 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

…………………………

S Bish

Commissioner of the Court

Annexure A (208257, pdf)

Annexure B (367873, pdf)

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Amendments

01 July 2020 - Correction to the coversheet

Decision last updated: 01 July 2020