Best Build NSW Pty Ltd v Georges River Council

[2020] NSWLEC 1301

Land and Environment Court

New South Wales

Medium Neutral Citation:

Best Build NSW Pty Ltd v Georges River Council [2020] NSWLEC 1301

Hearing dates:

23 June 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:
(1) The Applicant is granted leave to rely upon amended plans and documents referred to in Annexure A.
(2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Act in the amount of $57,500.00 on or before 23 July 2020 in full and final satisfaction of all the cost orders made in these proceedings. For clarity, all previous costs orders made in these proceedings are set aside.
(3) The appeal is upheld.
(4) Development consent is granted to Development Application No DA 2018/0201 for the demolition of existing structures and construction of a 6 storey boarding house development comprising 29 rooms inclusive of site manager’s room over basement car parking at property Lot A DP 371957 known as 3 Gray Street, Kogarah subject to the amended plans referred to at Annexure A and the conditions contained at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – boarding house development – amended plans – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment

Kogarah Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Infrastructure) 2007

Category:

Principal judgment

Parties:

Best Build NSW Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
J Ware (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Georges River Council (Respondent)

File Number(s):

2018/00393349

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant, Best Build NSW Pty Ltd, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council of Development Application No. DA2018/0201. The development application, as amended, seeks consent for demolition of a single storey dwelling, carport and garage, and the construction of a six-storey building containing 29 boarding rooms over basement carparking. The development is proposed at 3 Gray Street, Kogarah (Lot A in DP 371957).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 28 August 2019. The parties were unable to reach agreement and the conciliation conference was terminated under s 34(4) of the LEC Act. At the request of the parties, the Court arranged a second conciliation conference on 23 June 2020. Following the second conciliation process, the parties agreed on an amended design for the development, as well as an agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The development application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. Pursuant to the Kogarah Local Environmental Plan 2012 (LEP 2012), the subject site is zoned R3- Medium Density Development and I have had regard to the objectives of the zone in determining the application. A boarding house is permissible with consent in this zone.

3. Pursuant to the Height of Buildings Map referred to in cl 4.3 of LEP 2012, the maximum permissible height on the site is 21m. The proposed development, as amended, is compliant with the maximum height.

4. I am satisfied that cl 6.2 of LEP 2012 is satisfied by the Geotechnical Investigation Report prepared by EI Australia dated 23 March 2020.

5. Pursuant to cl 6.5 of LEP 2012, Sydney Airport issued a Notice on 18 February 2019 citing no objection to the erection of the proposed development to 49.6 AHD. This maximum height is consistent with proposed maximum height. I am satisfied that the requirements of cl 6.5 of LEP 2012 are met.

6. As required by s 4.15(1) (ii) of the EPA Act I have given consideration to the draft Georges River Local Environmental Plan 2020.

7. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. A Detailed Site Investigation of the land has been prepared by EIAustralia dated 23 March 2020. This report concludes that the site can be made suitable for residential use, subject to implementation of the recommendations in the report. Compliance with the recommendations of the report is required by consent condition 28.

8. The Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment applies to the land. In determining the application, I have given consideration to the Planning Principles at Part 2 of the instrument.

9. A BASIX certificate has been provided to satisfy the requirement in Schedule 1 of the Regulation and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

10. The site is within a 100m of a rail corridor and is likely to be affected by rail noise. A Rail Noise Assessment report has been prepared by Acoustic Vibration and Noise Pty Ltd, dated 24 March 2020. The recommendations of the report are incorporated in the conditions of consent. The Rail Noise Assessment confirms that the requirements of cl 87(3) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) will be achieved, subject to the implementation of the reports recommendations. I am satisfied that the requirements of cl 87(3) of SEPP Infrastructure are met.

11. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a boarding house. The division applies to the site as the development sought is permissible under LEP 2012 and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH).

12. I accept that the subject site meets the definition of ‘accessible area’ on the basis of the site being within 450m of a Kogarah Railway Station as required by cl 4(1)(a) of SEPP ARH.

13. The development is compliant with the standards at cl 30 of SEPP ARH.

14. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

15. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to rely upon amended plans and documents referred to in Annexure A.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Act in the amount of $57,500.00 on or before 23 July 2020 in full and final satisfaction of all the cost orders made in these proceedings. For clarity, all previous costs orders made in these proceedings are set aside.

3. The appeal is upheld.

4. Development consent is granted to Development Application No DA 2018/0201 for the demolition of existing structures and construction of a 6 storey boarding house development comprising 29 rooms inclusive of site manager’s room over basement car parking at property Lot A DP 371957 known as 3 Gray Street, Kogarah subject to the amended plans referred to at Annexure A and the conditions contained at Annexure B.

8. ………………………………..

D M Dickson

Commissioner of the Court

Annexure A (167798, pdf)

Annexure B (455592, pdf)

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Decision last updated: 15 July 2020