Beverley Park Golf Club Ltd v Georges River Council

[2020] NSWLEC 1679

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beverley Park Golf Club Ltd v Georges River Council [2020] NSWLEC 1679

Hearing dates:

Conciliation on 16 November 2020 and 4 December 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely on the following amended material annexed to this Agreement and marked “A”:

(a) Plans prepared by Harrison Friedmann & Associates Pty Ltd dated 24 November 2020 Reference No. 62963DT Sheets 1 to 5.

(b) Plans prepared by Russell Lee and Paul Scrivener (Ref 20/2216) dated 14 December 2020 Revision No. K. Being “Landscape Site Plan, Landscape Plan Detail Area A, Landscape Plan Detail Area B, Landscape Plan Detail Area C, Landscape Plan Detail Area D, Landscape Plan Detail Area A1, A2 and B1, Landscape Plan Detail Area B2 and B3, Landscape Plan Detail Area D1, Landscape Plan Detail Area C1 and C2.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $2,000.00 within 60 days of the date of these orders.

(3) The appeal is upheld.

(4) Development Application No. 2017/0471 for construction of perimeter security fence and gates and landscaping/golf course works at Beverley Park Golf Course at 87A Jubilee Avenue, Beverley Park is approved, subject to the conditions of consent set out in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION – fence around golf course – visual amenity – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Kogarah Shellharbour Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Kogarah Development Control Plan 2013

Category:

Principal judgment

Parties:

Beverley Park Golf Club Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
T Messenger (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Messenger & Messenger Solicitors (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/14918

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2017/0471 by Georges River Council (hereafter the Council) which as amended, seeks construction of a perimeter security fence with (11) gates around the boundary of the Beverley Park Golf Course, also known as 87A Jubilee Avenue, Beverley Park (hereafter the site).

2. The site is highly fragmented, although consolidated in appearance and location, which is an amalgam of 35 allotments over various deposited plans (DP). All but two of these allotments are owned by the Council, with the remaining two allotments owned by Crown Land (Lot 7031, DP 93155) and Sydney Water (Lot 3, DP 230427). The site has frontage to several roads, including:

• Jubilee Avenue (northern boundary and primary frontage),

• Battye Avenue, Weeney Street, Burgess Street and Targo Road (eastern boundary),

• Ramsgate Road (southern boundary, and rear), and

• Harslett Crescent and Ferry Avenue (western boundary).

3. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to the parties’ request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was initially held on 16 November 2020, and started onsite with a view of the perimeter of the course, and then proceeded by Microsoft (MS) Teams in Court. There were no (resident) objectors at the conciliation, however the Court notes that a number of resident submissions in objection were provided as a result of notification of the original DA.

5. Based on the 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 contentions raised by Council have been considered and resolved, in addition to the issues raised in submissions by objectors. The decision of the parties is to uphold the appeal and grant consent to DA 2017/0471 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 of the EPA Act and being satisfied, pursuant to be satisfied of the requirements in s 4.15(1) to grant consent to DA 2017/0471, with conditions described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court’s consideration as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); Kogarah Local Environmental Plan 2012 (KLEP); and the Kogarah Development Control Plan 2013 (KDCP).

8. The Council, as owners of the land on which the works are proposed to be undertaken, have provided written consent for the proposed works. No works are proposed on lands owned by Sydney Water and Crown Lands. The amended DA is supported by an amended survey that describes the relevant lots associated with the site relative to the proposed works. The contention as it relates to owners consent is therefore resolved.

9. The parties agree that the proposed development complies with the provisions of SEPP 55. The parties agree that the site is suitable for the proposed development, particularly as no excavation is proposed and the conditions of consent address any unforeseen issues, thereby satisfying the requirements of SEPP 55.

10. The proposed development on the site is located within the RE1 Public Recreation zone, as identified in the KLEP. The proposed development is permissible and satisfies the objectives of this zone. The parties agree that the relevant provisions of the KLEP are addressed to their satisfaction. The relevant contentions are resolved by the DA’s amended plans and supporting documents, and conditions of consent.

11. The parties agree that the DA was publicly notified in accordance with the KDCP. During the notification period for this DA under appeal, 77 submissions in objection were received by Council. The parties agree that the issues raised by objectors are resolved by the provision of additional information and amended plans that supports the DA, and conditions of consent.

12. As a result of the amended DA and agreed conditions of consent, the parties agree that there are no unreasonable amenity impacts to adjoining properties as a result of the proposed development. The contention as it relates to visual impact is resolved by the design and location of the proposed fence and the retention/protection of the majority of trees.

13. The parties advise the Court that the amended DA has been considered in the context of the site and surrounding area, particularly the proximity of residential dwellings and public reliance on the site. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties.

14. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions and resident issues, as raised.

15. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2017/0471 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

16. 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.

17. The Court orders that:

1. Leave is granted to the Applicant to rely on the following amended material annexed to this Agreement and marked “A”:

1. Plans prepared by Harrison Friedmann & Associates Pty Ltd dated 24 November 2020 Reference No. 62963DT Sheets 1 to 5.

2. Plans prepared by Russell Lee and Paul Scrivener (Ref 20/2216) dated 14 December 2020 Revision No. K. Being “Landscape Site Plan, Landscape Plan Detail Area A, Landscape Plan Detail Area B, Landscape Plan Detail Area C, Landscape Plan Detail Area D, Landscape Plan Detail Area A1, A2 and B1, Landscape Plan Detail Area B2 and B3, Landscape Plan Detail Area D1, Landscape Plan Detail Area C1 and C2.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application under section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $2,000.00 within 60 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. 2017/0471 for construction of perimeter security fence and gates and landscaping/golf course works at Beverley Park Golf Course at 87A Jubilee Avenue, Beverley Park is approved, subject to the conditions of consent set out in Annexure ‘B’.

…………………………

Sarah Bish

Commissioner of the Court

14918.20 Annexure A (4983763, pdf)

14918.20 Annexure B (182881, pdf)

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Decision last updated: 24 December 2020