Borina Pty Ltd v Georges River Council

[2019] NSWLEC 1270

Land and Environment Court

New South Wales

Medium Neutral Citation:	Borina Pty Ltd v Georges River Council [2019] NSWLEC 1270
Hearing dates:	Conciliation conference on 29 April 2019; 15 and 29 May 2019
Date of orders:	20 June 2019
Decision date:	20 June 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the plans, drawings and material listed in Annexure A, attached at Annexure B and referred to in the conditions of consent at Annexure C. (2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000 on or before 30 June 2019 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 Application No. DA2018/0303 as amended with the leave of the Court with the architectural plans, drawings and material listed at Annexure A and attached at Annexure B for the demolition of existing structures and construction of 3 detached buildings collectively containing 40 x 2 bedroom apartments and 2 levels of basement parking at Lot 20, section 17 DP1963 and Lots A, B and C in DP384408 known as 513 Princes Highway, Blakehurst is approved subject to the conditions attached at Annexure C.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Development
Texts Cited:	Apartment Design Guidelines
Category:	Principal judgment
Parties:	Borina Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) J Ware, Georges River Council (Respondent)
File Number(s):	2018/00296856
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council (Council) of Development Application No DA2018/0303. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lot 20, Section 17, DP 1963 and Lots A, B and C in DP 384408 at 513 Princes Highway, Blakehurst (the site). The application, as originally submitted to Council on 25 July 2018, seeks consent for demolition of existing structures and construction of a new residential flat building development comprising three detached buildings, each of 5 storeys in height, containing a total of forty-three (43) residential apartments over a common basement of two below ground levels.

3. 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 29 April 2019, 15 & 29 May 2019. I presided over the conciliation conference.

4. As a result of the conciliation conference the development application plans were amended and, after the conciliation conference, the parties reached agreement based on those amended plans as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The main changes between the plans as originally submitted and the plans the subject of the s34 agreement are the removal of three apartments (to a new total of 40), an increase to the western side boundary setbacks to the adjoining R2 Low Density Zone, a decrease in the area of the excavated basement levels and an increase in landscaping, deep soil areas, and communal open space.

6. The agreement reached between the parties involved the Court upholding the appeal and granting development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. I have formed the opinion that the relevant jurisdictional matters identified in the Statement of Facts and Contentions have been satisfied for the reasons also set out in [7] below.

7. The relevant jurisdictional matters are:

1. In relation to Kogarah Local Environmental Plan 2012 (KLEP 2012), I am satisfied that the development is for the purpose of a residential flat building, which is a permissible use in the R3 Medium Density Residential zone. I also accept the advice of the parties and the evidence submitted with the amended application set of drawings attached at Appendix B, that the development does not contravene any development standard in KLEP 2012.

2. In relation to State Environmental Planning Policy No 65 – Design Quality of Residential Development (SEPP 65) and the associated Apartment Design Guidelines (ADG), I note an updated Design Verification Statement prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulations 2000 and dated 20 May 2019 has been submitted, and I am satisfied the development reasonably satisfies the aims and relevant provisions of SEPP 65 and the ADG.

3. In relation to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cll 7(1) and (2) requiring consideration of any contamination and associated required remediation. A Preliminary Site Investigation Report submitted with the application indicates that the site is unlikely to have resulted in contamination, and the land does not require remediation.

4. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 an updated BASIX Certificate dated 20 May has been provided and I am satisfied the provisions of this SEPP have been addressed.

5. In relation to State Environmental Planning Policy (Infrastructure) 2007, as required by cl 101(2) of that SEPP and based on the Traffic and Parking Statement and Road Traffic Noise Intrusion Assessment submitted with the original application I am satisfied, that safe vehicular access is provided by a road other than a classified road and the safety, efficiency and ongoing operation of the classified road (Princes Highway) will not be adversely affected, and the development includes measures to ameliorate potential traffic noise and vehicle emissions arising from proximity to the classified road.

8. Key issues in addition to the jurisdictional matters referred to above can be summarised as the scale transition between and existing lower scale development on the adjoining R2 Low Density Residential zone; the acoustic and visual privacy of the adjoining residential development; the excessive basement excavation and resultant paucity of deep soil and tree planting, particularly in the street boundary setbacks; the amount, design and amenity of the communal open space areas; and the stormwater design and management, including details of the drainage easement. Each of these issues has been resolved to the satisfaction of the parties in the amended plans referred to in the conditions of consent and I have also formed the opinion that these aspects of the proposed development are now acceptable.

9. 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.

10. The Court orders:

1. The Applicant is granted leave to rely upon the plans, drawings and material listed in Annexure A, attached at Annexure B and referred to in the conditions of consent at Annexure C.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,000 on or before 30 June 2019 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 Application No. DA2018/0303 as amended with the leave of the Court with the architectural plans, drawings and material listed at Annexure A and attached at Annexure B for the demolition of existing structures and construction of 3 detached buildings collectively containing 40 x 2 bedroom apartments and 2 levels of basement parking at Lot 20, section 17 DP1963 and Lots A, B and C in DP384408 known as 513 Princes Highway, Blakehurst is approved subject to the conditions attached at Annexure C.

……………………….

J Bindon

Acting Commissioner of the Court

Annexure A (368 KB, pdf)

Annexure B Part1 (4.86 MB, pdf)

Annexure B Part2 (5.23 MB, pdf)

Annexure B Part3 (4.93 MB, pdf)

Annexure B Part4 (5.06 MB, pdf)

Annexure B Part5 (2.52 MB, pdf)

Annexure C (222 KB, PDF)

Decision last updated: 20 June 2019