Brightstone Developments Pty Ltd v Georges River Council

[2019] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brightstone Developments Pty Ltd v Georges River Council [2019] NSWLEC 1610
Hearing dates:	Conciliation conference on 6 December 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Brightstone Developments Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: N Sandstrom (Solicitor) (Applicant) J Hewitt (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/258053
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for the construction of multi dwelling housing comprising 14 two-storey dwellings with basement car parking at 1-5 Rickard Road, South Hurstville. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the 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. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 6 December 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application reduces the widths of townhouses 7-14 from what was originally proposed, which accommodates a greater space for landscaping on the eastern side of the site. The amended development application also, inter alia, reduces the proposed hardstand area and increases eastern and western setbacks for the rear row of dwellings.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R3 Medium Density Residential, pursuant to the Kogarah Local Environmental Plan 2012 (“KLEP 2012”), in which multi-dwelling houses are permitted with consent.

• The proposed development complies with the applicable development standards in the KLEP 2012 for height, floor space ratio and minimum lot size.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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 Court orders that:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents:

Description	Reference No.	Date	Revision	Prepared by
Cover Sheet	N/A	11/19	11	Derek Raithby Architecture
Site Analysis Plan Drawing 1	D1711	11/19	11	Derek Raithby Architecture
Basement Floor Plan Drawing 2	D1711	10/19	10	Derek Raithby Architecture
Ground Floor Plan Drawing 3	D1711	11/19	11	Derek Raithby Architecture
First Floor Plan Drawing 4	D1711	11/19	11	Derek Raithby Architecture
Roof Plan Drawing 5	D1711	11/19	11	Derek Raithby Architecture
Elevations Drawing 6	D1711	11/19	11	Derek Raithby Architecture
Sections Drawing 7	D1711	11/19	11	Derek Raithby Architecture
Adaptable Units Drawing 10	D1711	9/17	6	Derek Raithby Architecture
Demolition Plan Drawing 11	D1711	9/17	6	Derek Raithby Architecture
Sediment Control Plan Drawing 12	D1711	9/17	6	Derek Raithby Architecture
Driveway Profile Drawing 13	D1711	9/17	6	Derek Raithby Architecture
Finishes Schedule Drawing 14	D1711	10/19	7	Derek Raithby Architecture
Fence Detail Drawing 31	D1711	10/19	1	Derek Raithby Architecture
Cover Sheet	LA-00	05.11.19	D - 04	Derek Raithby Architecture
Landscape Plan	LA-01	05.11.19	D - 04	Derek Raithby Architecture
Landscape Plan	LA-02	05.11.19	D - 04	Derek Raithby Architecture
Landscape Plan	LA-03	05.11.19	D - 04	Derek Raithby Architecture
Landscape Section and Plan Section	LA-04	05.11.19	D - 04	Derek Raithby Architecture
Landscape Details	LA-05	05.11.19	D - 04	Derek Raithby Architecture
Landscape Specifications	LA-06	05.11.19	D - 04	Derek Raithby Architecture
Landscape Specifications	LA-07	05.11.19	D - 04	Derek Raithby Architecture

2. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application in the amount of $3,500.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Application no. DA2017/0460 for the construction of multi dwelling housing comprising 14 x two storey dwellings with basement car parking at 1 – 5 Rickard Road, South Hurstville is approved subject to the conditions contained in Annexure “A” hereto.

………………………..

J Gray

Commissioner of the Court

Annexure A (174 KB, pdf)

Architectural Plans (15.4 MB, pdf)

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Decision last updated: 09 December 2019