Carlton Investments No.1 Pty Ltd v Georges River Council

[2019] NSWLEC 1195

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carlton Investments No.1 Pty Ltd v Georges River Council [2019] NSWLEC 1195
Hearing dates:	Conciliation Conference on 26 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Carlton Investments No. 1 Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: B Salon, Mills Oakley (Applicant) A Epstein, HWL Ebsworth (Respondent)
File Number(s):	2018/140963
Publication restriction:	No

Judgment

1. COMMISSIONER: Carlton Investments No. 1 Pty Ltd (the Applicant) has appealed the deemed refusal of the Georges River Council (the Respondent) of its development application (DA2018/0102) for the demolition of existing structures and construction of a part five storey, part six storey mixed use development with three levels of basement car parking (the proposed development) at 313-323 Princes Highway, Carlton (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

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 April 2019, and I presided over the conciliation conference.

5. 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 and granting consent to the Applicant’s development application, subject to conditions.

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. The Parties’ decision involves the Court exercising the function under s 4.16 of the EP&A to grant consent to the modification application.

7. 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 to be the provisions of cl 4.3 of the Kogarah Local Environmental Plan 2012 (KLEP) concerning the height of buildings and which provides that a maximum height development standard of 21m is applicable to the Subject Site), and in relation to which the Parties agreed that the Applicant’s written request, prepared under the provisions of cl 4.6 of KLEP, to vary that standard was well founded.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.15 of the EP&A Act have been so satisfied.

9. I am further 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, for reasons provided at [7] and [8].

10. 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.

11. The Court orders:

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

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning Assessment Act 1979 (NSW) in the amount of $35,000 in full and final satisfaction of all the cost orders made in these proceedings. For clarity, any and all previous costs orders made in these proceedings are set aside.

3. The Clause 4.6 variation application in relation to the height of buildings development standard contained in Clause 4.3 of the KLEP and annexed to this agreement as ‘Annexure C’ is upheld.

4. The appeal is upheld.

5. Development Application No. DA2018/0102, as amended with the architectural plans, drawings and material listed at ‘Annexure A’ and attached at ‘Annexure B’ and ‘Annexure C’, for the demolition of existing structures and construction of a part five and part six storey mixed use development with three levels of basement car parking at 313-323 Princes Highway Carlton, NSW 2218, is approved subject to the conditions annexed to this agreement as ‘Annexure D’.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A

Annexure B Part 1 

Annexure B Part 2