Beverly Park Pty Ltd v Georges River Council

[2025] NSWLEC 1147

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beverly Park Pty Ltd v Georges River Council [2025] NSWLEC 1147

Hearing dates:

Conciliation Conference on 26 November 2024, 19 December 2024, 22 January 2025 and 5 February 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The orders of the Court are:

(1) Leave is granted to the applicant to amend the application to rely on the plans and documents listed at [43].

(2)   The appeal is upheld.

(3)   Development Application DA2023/0012, as amended, for the demolition of the existing dwelling and construction of a seven-storey residential flat building consisting of 28 residential apartments above three basement levels of parking containing 43 car parking spaces plus tree removal, landscaping and associated site works at 180-184 Princes Highway, Beverly Park NSW 2217, is determined by grant of consent, subject to the conditions of consent set out in Annexure “A”.

(4) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $20,000 within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Land and Environment Court Act 1979, s 34

Georges River Local Environmental Plan 2021, cll 1.3, 4.3, 4.4, 4.6, 6.1, 6.2, 6,3, 6.9, 6.10, 6.11, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, ss 2.48, 2.119, 2.120

Texts Cited:

Standards Australia, AS/NZS2890

NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

Beverly Park Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor) (Applicant)
S Hill (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/208463

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA2023/0012 (DA) for demolition of existing structures and construction of a seven-storey residential flat building consisting of 28 residential apartments above three basement levels of parking containing 43 car parking spaces plus tree removal, landscaping and associated site works at 180-184 Princes Highway, Beverly Park NSW (the site).

2. The subject site is legally described as Lots 1, 2 and 3 in Deposited Plan 17522.

3. The site has a frontage to Princes Highway and is currently occupied by three dwellings. The site adjoins “McWilliam House” at 186-188 Princes Highway, a two-storey residence and garden listed as a local item of environmental heritage in Sch 5 of the Georges River Local Environmental Plan 2021 (item I3).

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 26 November 2024. I presided over the conciliation conference, commencing with an onsite view, at which the Court, in the company of legal representatives and their parties heard oral submissions from residents. Following the conciliation conference, on the basis of amended plans 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.

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 DA.

6. I formed an opinion of satisfaction, based on the evidence and the submissions of the parties, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Owner’s consent

7. The DA was made with the consent of the owner of the site.

Notification

8. The DA, was notified by the Council from 3 May 2023 to 17 May 2023; no submissions were received during the public notification period. The DA, as amended (amended DA), was renotified from 8 February 2024 to 22 February 2024.; no submissions were received.

Planning Framework

Georges River Local Environmental Plan 2021

9. The Georges River Local Environmental Plan 2021 (GRLEP) applies to the site, which is within the Georges River Local Government Area (cl 1.3).

10. The site is located within the R4 High Density Residential zone, pursuant to the GRLEP. The proposal is consistent with the relevant objectives of the zone, which are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable other land uses that contribute to the vibrancy of the neighbourhood while ensuring that business centres remain the focus for business and retail activity.

• To encourage development that maximises public transport patronage and promotes walking and cycling.

11. Development for the purposes of residential flat buildings is permissible with consent in Zone R4. The proposed development is construction of a residential flat building with the definition in GRLEP.

Contravention of the height of buildings development standard

12. The site has a prescribed maximum building height of 21 metres (m).

13. The amended DA proposes a maximum building height of 22.4m, exceeding the maximum building height by 1.4m, representing a variance of 6.6%.

14. The amended DA is supported by a written request to vary the development standard pursuant to cl 4.6 of the GRLEP, prepared by BMA Urban dated January 2025 (written request).

15. The parties agree, and I am satisfied that the applicant’s written request under cl 4.6 of the GRLEP adequately justifies the proposed variance to the height of buildings development standard and the matters required to be demonstrated by cl 4.6(3) for the following reasons:

1. The proposal is consistent with the relevant objectives of the cl 4.3 development standard, notwithstanding the height variation; and

2. There are sufficient environmental planning grounds to justify contravening the building height development standard.

3. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

4. The area of building height exceedance relates to a portion of the rooftop parapet and the lift overrun, generally set towards the centre of the site.

5. The lift overrun facilitates equitable access to the rooftop communal open space.

6. The parties submit that the proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, views loss or privacy impacts upon adjoining neighbours.

7. The proposal is consistent with the objectives of the GRLEP Zone R4 High Density Residential land use zone, including to provide for the housing needs of the community within a high density residential environment.

16. Clause 4.4 of GRLEP prescribes a maximum floor space ratio of 2:1 for the site, equating to 2,721 m²; the parties agree and the documentation indicates (Buildum Architects architectural drawing DA.6.01 Gross Floor Area (GFA) calculations) that the proposed development has a GFA of 2,689 m², and therefore complies with cl 4.4.

17. I consider that the impact of the proposed earthworks, to be considered at cl 6.2 of GRLEP, have been taken into consideration in the Geotechnical Investigation Report (prepared by Morrow Geotechnics Pty Ltd) and are adequately addressed in the agreed conditions of consent, including condition 15 (Stormwater system), condition 18 (On site detention), condition 27 (Geotechnical report) condition 36 (Site management plan), and condition 41 (Erosion & sedimentation control), and are unlikely to have a detrimental impact on existing drainage patterns or soil stability.

18. The site is identified as being in an area of Class 5 Acid Sulfate Soils on the relevant map at cl 6.1 of GRLEP. However, as the proposed works are sited above 5m  Australian Height Datum (AHD), I accept the advice that the works are not likely to lower the watertable below 1m AHD within 500m adjacent Class 1-4 land that is below 5m AHD, and therefore an Acid Sulfate Soils management plan is not required. Further, the DA is accompanied by an Acid Sulfate Soils Assessment (prepared by Coleman & Adams Environmental Pty Ltd) which found no acidic conditions present in the soil.

19. I am satisfied that the amended stormwater and landscape plans which accompany the amended DA, along with the agreed conditions of consent, adequately address the matters to be considered at cl 6.3 of GRLEP in regard to the use of water permeable surfaces, on-site stormwater detention, and the avoidance of the adverse impacts of stormwater runoff on adjoining properties.

20. I am satisfied by the agreement between the parties that the matters regarding essential services to be considered at cl 6.9 of GRLEP have been addressed in the amended DA.

21. I accept the parties’ advice that the amended design was developed with review, analysis and input during the conciliation conference, and that in the opinion of the Respondent’s experts the development exhibits design excellence in accordance with cl 6.10 of GRLEP, and that the design has regard to the matters contained in cl 6.10(5). The amended DA is accompanied by a Design Verification Statement.

22. I am satisfied that adequate consideration has been given to the matters contained in cl 6.11 of GRLEP in terms of environmental sustainability, and this is demonstrated including through the provision of BASIX and NatHERS Certificates, the provision of bicycle and Electric Vehicle car parking spaces in the basement, cross-flow ventilation diagrams (architectural drawing sheet DA.6.02).

State Environmental Planning Policy (Resilience and Hazards) 2021

23. On the basis that the site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the site, I accept that the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

24. Clause 6 of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) applies, as the development is ‘BASIX affected development’ and a BASIX certificate must be issued for the DA. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into force and repealed the BASIX SEPP. The amended DA is captured by the savings and transitional provisions in s 4.2(1) and therefore is not subject to the provisions of the Sustainable Buildings SEPP.

25. The application is accompanied by a BASIX certificate (1777975M dated 16 December 2024, prepared by Sustainaspace Pty Ltd), in accordance with BASIX SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Pursuant to Ch 2 (Vegetation in non rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the amended DA will not result in the clearing of any vegetation except that authorised by the consent.

27. Chapter 6 (Water Catchments) of the Biodiversity SEPP applies to the site as it is located within the Georges River catchment. I accept that the amended stormwater plans prepared by Raft Designs demonstrate that the development has been designed in accordance with typical stormwater capture, filtration and release measures, and that the proposed conditions of consent, are consistent with the requirements of Ch 6 Water Catchments of the Biodiversity SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. Chapter 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to development likely to affect electricity transmission or distribution network. Section 2.48 applies as the proposed development is within 5m of an exposed overhead power line.

29. Under s 2.48(2), the consent authority must refer the DA to the electricity supply authority and consider any response received within 21 days. The Council referred the DA to Ausgrid, who provided a response which did not object to the DA subject to conditions. Those conditions have been included in condition 8 of the conditions of consent.

30. On this basis, the parties submit and I accept that the requirements in s 2.48 of the TI SEPP have been met.

31. Princes Highway in Beverly Park is a classified road, and therefore s 2.119 of the TI SEPP applies. Section 2.119(2) of the TI SEPP stated:

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that –

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

32. The site constraints do not permit access to the site other than from the Classified Road. The Traffic and Parking Assessment report (prepared by Terraffic Pty Ltd) assesses that the proposed development will not result in unreasonable impacts on the existing operational performance of the Classified Road. The parties’ experts have confirmed access to the site is in accordance with the relevant Australian Standard (AS/NZS2890). Management of dust and smoke during construction will be regulated by a site management plan required by the conditions of consent.

33. On the basis of the conclusions in the paragraph above, and the imposition of conditions of consent including conditions 6 and 36, the parties submit and I accept that the requirements in s 2.119 of the TI SEPP have been met.

34. As residential development on Princes Highway, s 2.120 applies. Consent cannot be granted unless the consent authority is satisfied that appropriate measures will be taken to meet certain noise criteria within the development.

35. The Acoustic Report (prepared by Acoustic Noise & Vibration Solutions Pty Ltd, 16 January 2025) confirms that the proposed development is capable of achieving the noise attenuation criteria, subject to the implementation of the recommendations within the report.

36. On the basis of the conclusions in the above report, the parties submit and I accept that the requirements in s 2.120 of the TI SEPP have been met.

State Environmental Planning Policy (Housing) 2021

37. The DA seeks consent for residential apartment development within the meaning of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

38. Section 147(1) of the Housing SEPP provides that consent must not be granted to development unless the consent authority has considered:

…

(a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

39. The parties agree, and I am satisfied that, the Design Verification Statement (prepared by Dustin Nguyen, 16 December 2024) provides consideration regarding the response of the amended DA to the requirements of the Apartment Design Guide and the design principles for residential apartment development. I further note that the parties’ urban design experts have provided advice to the parties during the conciliation conference in support of the conclusion that the amended design is satisfactory. On this basis, I accept that the requirements of s 147(1) of the Housing SEPP have been met.

Conclusion

40. I have considered the submissions made by the parties in the Jurisdictional Statement submitted with the Court on 5 February 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

41. I am required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

42. In making the orders to give effect to the agreement between the parties, I was not required to, and have not made any merit assessment of the issues that were originally in dispute between the parties.

43. The Court notes:

1. That the Respondent, Georges River Council, agrees to the Applicant amending Development Application DA2023/0012 to rely on the following amended plans and documents:

1. Amended architectural plans, prepared by Buildum Architecture Pty Ltd:

Drawing No.	Title	Revision	Date
DA.1.01	Cover	DA-F	13/12/2024
DA.1.02	BASIX Summary	DA-F	13/12/2024
DA.1.03	Site Analysis – Wide Area Context	DA-F	13/12/2024
DA.1.03a	Site Analysis – Wide Site Context	DA-F	13/12/2024
DA.1.04	Site Analysis	DA-F	13/12/2024
DA.1.06	Streetscape Elevation Analysis	DA-F	13/12/2024
DA.1.08	Site Plan	DA-F	13/12/2024
DA.1.09	Demolition Plan	DA-F	13/12/2024
DA.2.01	Ground Floor Plan	DA-F	13/12/2024
DA.2.02	1st Floor Plan	DA-F	13/12/2024
DA.2.03	2nd Floor Plan	DA-F	13/12/2024
DA.2.04	3rd Floor Plan	DA-F	13/12/2024
DA.2.05	4th Floor Plan	DA-F	13/12/2024
DA.2.06	5th Floor Plan	DA-F	13/12/2024
DA.2.07	6th Floor Plan	DA-F	13/12/2024
DA.2.08	Roof Plan	DA-F	13/12/2024
DA.2.09	B1 Basement Plan	DA-F	13/12/2024
DA.2.10	B2 Basement Plan	DA-F	13/12/2024
DA.2.11	Basement 3 Plan	DA-F	13/12/2024
DA.3.01	North-West Elevation	DA-F	13/12/2024
DA.3.02	North-East Elevation	DA-F	13/12/2024
DA.3.03	South-West Elevation	DA-F	13/12/2024
DA.3.04	South-East Elevation	DA-F	13/12/2024
DA.4.01	Section A-A	DA-F	13/12/2024
DA.4.02	Section B-B	DA-F	13/12/2024
DA.4.03	Section C-C, D-D	DA-F	13/12/2024
DA.5.01	Shadow Diagrams June 21	DA-F	13/12/2024
DA.6.01	GFA Calculations	DA-F	13/12/2024
DA.6.02	Cross Flow Ventilation Diagrams	DA-F	13/12/2024
DA.6.03	Pre & Post Adaptable Plans Units 001 & 002	DA-F	13/12/2024
DA.6.04	Pre & Post Adaptable Plans Unit 005	DA-F	13/12/2024
DA.6.05	Doors Schedule	DA-F	13/12/2024
DA.6.06	Windows Schedule	DA-F	13/12/2024
DA.6.07	Storage Plans	DA-F	13/12/2024
DA.6.08	Basement Storage Plans	DA-F	13/12/2024
DA.6.09	Excavation Plan and Sections	DA-F	13/12/2024
DA.6.10	Waste, Erosion & Construction Plan	DA-F	13/12/2024
DA.6.20	Typical Fence Details	DA-F	13/12/2024

2. Amended landscape plans prepared by Zenith Landscape Designs:

Title	Drawing No.	Revision	Date
Landscape Plan	22-4679 LO1	D	12 December 2024
Landscape Plan	22-4679 LO2	D	12 December 2024
Landscape Plan	22-4679 LO3	D	12 December 2024

3. Amended stormwater plans, prepared by RAFT Designs:

Drawing Title	Sheet No.	Amendment	Date
Stormwater Cover Page	1	G	6 December 2024
Basement 3 Stormwater Plan	2	G	6 December 2024
Basement 2 Stormwater Plan	3	G	6 December 2024
Basement 1 Stormwater Plan	4	G	6 December 2024
Ground Floor Stormwater Plan	5	G	6 December 2024
Details and Sections	6	G	6 December 2024
Level 1 Stormwater Plan	7	G	6 December 2024
Level 2 Stormwater Plan	8	G	6 December 2024
Level 3 Stormwater Plan	9	G	6 December 2024
Level 4 Stormwater Plan	10	G	6 December 2024
Level 5 Stormwater Plan	11	G	6 December 2024
Level 6 Stormwater Plan	12	G	6 December 2024
Roof Stormwater Plan	13	G	6 December 2024

4. Arboricultural Impact Assessment prepared by DJD Tree Consultancy revision B, dated 6 December 2024.

5. Operational Waste Management Plan, prepared by Elephants Foot Consulting, report no. 3915, revision D, dated 30 October 2024.

6. Owner’s Consent dated 28 January 2025.

7. Acoustic Report prepared by Acoustic Noise & Vibration Solutions Pty Ltd, reference no. 2022-297, revision 1, dated 16 January 2025.

8. BASIX Certificate number 1777975M, dated 16 December 2024.

9. NatHERS Certificate number #HR-R7VE2J-01, dated 16 December 2024.

10. Acid Sulfate Soils assessment, prepared by Coleman & Adams Environmental, dated 29 June 2022.

11. Geotechical Investigation Report, prepared by Morrow Geotechnics Pty Ltd, dated 22 March 2022.

12. Design Verification Statement, prepared by Dustin Nguyen, project no. 221116, revision C, dated 16 December 2024.

13. Clause 4.6 Variation Request, prepared by BMA Urban, revision 2, dated January 2025.

2. The Court notes that the amended development application is to be filed by 11 February 2025.

Orders

44. The orders of the Court are:

1. Leave is granted to the applicant to amend the application to rely on the plans and documents listed at [43].

2. The appeal is upheld.

3. Development Application DA2023/0012, as amended, for the demolition of the existing dwelling and construction of a seven-storey residential flat building consisting of 28 residential apartments above three basement levels of parking containing 43 car parking spaces plus tree removal, landscaping and associated site works at 180-184 Princes Highway, Beverly Park NSW 2217, is determined by grant of consent, subject to the conditions of consent set out in Annexure “A”.

4. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $20,000 within 28 days of the date of these orders.

N Macken

Acting Commissioner of the Court

Annexure A

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Decision last updated: 14 March 2025