Bob Qi Building Pty Ltd v Georges River Council

[2024] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bob Qi Building Pty Ltd v Georges River Council [2024] NSWLEC 1207

Hearing dates:

Conciliation conference 15 April 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application, the subject of Order (3), within 7 days of the date of this Order.

(2) The Appeal is upheld.

(3) Development Application No. DA2022/0075, as amended, for the construction of a dual occupancy with basement parking and associated earthworks and landscaping on land legally described as Lot 3 DP 1224518 and known as 1A Rose Avenue, Connells Point, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy - conciliation conference - agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cll 4.1B, 4.3, 4.4A, 6.3, 6.7, 6.9, 6.12

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

Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Bob Qi Building Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Seton (Solicitor) (Applicant)
S Lasker (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/315303

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 2022/0075 (DA). The development application sought consent for the construction of a dual occupancy with basement parking and associated earthworks and landscaping at 3 DP 1224518, known as No 1A Rose Avenue, Connells Point (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA 2022/0075 in accordance with the documents listed at [21] (amended DA). 

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 April 2024. I 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 for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am 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, as set out below.

9. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 5 March 2022. The Respondent notified the development application between 7 April 2022 to 27 April 2022. Six submissions were received. The Court is informed that residents who made a submission were provided with a copy of the amended DA prior to the site viewing.

10. At the site viewing on 15 April 2024, the Court and parties heard oral concerns from three objectors, including understanding those concerns from one of the objector’s residences.

11. As the parties have entered into an agreement, Council, as the consent authority, has considered the concerns raised.

Georges River Local Environmental Plan 2021

12. The site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable jurisdictional provisions of the GRLEP are met:

1. Clause 4.1B minimum lot size applies to the amended DA, which includes a minimum front building line width. The amended DA is subject to a minimum lot size of 650m² and front building line width of 15m in accordance with cl 4.1B(2). As demonstrated on the Plan of Levels and Details prepared by W Buxton Pty Ltd dated 21 December 2021 (survey plan), the rectangular shaped site meets the minimum requirements at 650.5m² in size and 20.22m in width.

2. Clause 4.3(2) sets a maximum building height of 9m. The amended architectural plans prepared by Vic Lake Architects accompanying the amended DA (architectural plans) demonstrate the amended application is less than 9m in height on drawings DA04.01G, DA04.02G, DA04.03G, DA04.04G, DA05.01G, DA05.02G.

3. Clause 4.4A exceptions to floor space ratio (FSR) applies to the site, in this instance being 0.6:1. DA03.05G of the architectural plans demonstrates the amended DA is below the maximum FSR, at 0.51:1.

4. Clause 6.3 stormwater management applies to the site. On the basis of the Concept Stormwater Design and Civil Design drawings prepared by Greenview Consulting accompanying the amended DA (civil design drawings) and submissions from the parties that the site will comprise 43% permeable landing, I accept that the provisions of cl 6.3 are satisfied.

5. Clause 6.7 airspace operations applies to the site. As detailed in the Statement of Facts and Contentions filed to the Court 23 October 2023, Sydney Airport Corporation did not raise any objections to the DA.

6. Clause 6.9 essential services applies to the amended DA. With consideration of the existing services currently provided to the site I accept the parties’ agreement that the provisions have been satisfied.

7. Clause 6.12 landscaped areas applies to the amended DA. I accept the parties’ agreed detailed submissions that the provisions are met, as demonstrated by the landscape plans prepared by Zenith Landscape Design dated 21 March 2024, Arboricultural Impact Assessment prepared by CPS dated 13 March 2024, architectural plans, and Privacy Assessment prepared by Vic Lake Architects dated 8 March 2024. I accept that the landscaped area of 43% exceeds the 25% requirement, that adequate planting and trees are both retained and proposed, that the planting is commensurate to the scale of the development and character of the area, that planting will integrate with the existing trees to be retained, that indigenous species of vegetation has been included and that adequate privacy is maintained. I accept that the amended DA includes changes to mitigate the loss of trees on adjoining sites.

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

14. The DA was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

15. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (1238437M) dated 10 January 2024 that meets the provisions of SEPP BASIX.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA does not involve a change of use and has a history of residential use. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. Section 2.48 development likely to affect an electricity transmission or distribution network applies to the site. The DA was referred to Ausgrid who did not raise any objections.

Conclusion

18. 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.

19. 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.

20. I have considered the jurisdictional prerequisites 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.

21. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2022/0075 in accordance with the documents listed below:

Document	Date
Landscape Plans prepared by Zenith Landscape Designs	26 March 2024
Civil Design Plans prepared by Greenview Consulting	15 January 2024
Section 2 Privacy Assessment prepared by Vic Lake Architects	8 March 2024
Architectural Plans prepared by Vic Lake Architects	13 March 2023
Change Schedule prepared by Vic Lake Architects	13 March 2024
Arboricultural Impact Assessment prepared by Creative Planning Solutions	13 March 2024
Letter from Greenview Consulting to Vic Lake Architects	22 March 2024
Transmittal prepared by Greenview Consulting	Undated
BASIX Certificate No. 1732121M	10 January 2024

Orders:

22. The Court orders:

1. The Applicant is directed to file the amended development application, the subject of Order (3), within 7 days of the date of this Order.

2. The Appeal is upheld.

3. Development Application No. DA2022/0075, as amended, for the construction of a dual occupancy with basement parking and associated earthworks and landscaping on land legally described as Lot 3 DP 1224518 and known as 1A Rose Avenue, Connells Point, is determined by the grant of development consent subject to the conditions at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A

**********

Decision last updated: 23 April 2024