Cornerstone Design (NSW) Pty Ltd v Georges River Council

Case •

[2020] NSWLEC 1642

•

15 December 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Cornerstone Design (NSW) Pty Ltd v Georges River Council [2020] NSWLEC 1642
Hearing dates: Conciliation conference on 2 November 2020 and 25 November 2020
Date of orders: 15 December 2020
Decision date: 15 December 2020
Jurisdiction:Class 1
Before: Horton C
Decision:

See orders at [9]

Catchwords:

DEVELOPMENT APPLICATION – Residential apartment development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Airports Act 1996 Cth

Architects Act 2003

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 (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

Category:Principal judgment
Parties: Cornerstone Design (NSW) Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:

Counsel:
L Nurpuri (Applicant)
D LeBreton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2020/249925
Publication restriction: No

Judgment

  1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council (the Respondent) of Development Application No. DA2020/0223 for demolition works and construction of a residential flat building with basement car parking at 16-18 Elizabeth Street, Allawah (the site).

  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 2 November 2020. I presided over the conciliation conference.

  3. 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 development consent to the development application subject to conditions.

  4. The agreement required the amendment of drawings and other documents, for which purpose I granted an adjournment. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 26 November 2020.

  5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

  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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [9].

  1. The site is located within the R3 Medium Density Residential zone as identified in the Kogarah Local Environmental Plan 2012 (KLEP). The provisions of the R3 zone permits residential flat buildings with consent that is consistent with the objectives of the zone which are as follows:

Objectives of zone

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

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

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

  1. The minimum lot size for a residential flat building is 1,000m2 under clause 4.1A(2) of the KLEP. The lot size of the proposed development is 966m2, equating to a 34m2 departure or 3.4% variation from the 1000m2 minimum site area requirement as identified within the standard.

  2. The Applicant relies upon a written request prepared in accordance with cl 4.6 of the KLEP by BMA Urban, dated November 2020 that states the objective of the development standard at cl 4.1A are achieved notwithstanding the noncompliance.

  3. I am satisfied that the objective of the standard is achieved. I note the efforts by the Applicant to acquire the adjacent site so as to achieve the minimum lot size area set out in the standard, and the compliance demonstrated with the relevant floor space ratio and the substantial compliance with the height standard. For these reasons I am satisfied that strict compliance with the development standard is unreasonable or unnecessary in accordance with subcl 4.6(3)(a) of the KLEP.

  4. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the standard for similar reasons as identified at [6(4)]. Additionally, I accept that the amenity impacts of the proposed development are reasonable, as demonstrated in the shadow diagram drawings and, on the basis of the streetscape character analysis dated 16 May 2020, I am satisfied that the proposed development is not incompatible with older style residential flat buildings in Elizabeth Street and the wider locality.

  5. For the reasons set out above, and after considering the zone objectives at [6(1)], I am satisfied that the proposed development will be in the public interest in accordance with cl 4.6(4)(a)(ii) of the KLEP, is minor in numerical terms and raises no matters of significance for which the Secretary’s concurrence should not be assumed. Accordingly, I find the written request should be upheld.

  6. The proposed development exceeds the height standard at cl 4.3 of the KLEP of 15m and the Applicant relies on a written request prepared in accordance with cl 4.6 of the KLEP by BMA Urban to justify the contravention. The exceedance is identified as ranging between 290mm to 2205mm at the uppermost floor which accommodates the common area, comprising an indoor room and outdoor terrace.

  7. The objectives of the height standard at cl 4.3 of the KLEP are in the following terms:

(a) to establish the maximum height for buildings,

(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,

(c) to provide appropriate scale and intensity of development through height controls.

  1. For the reasons set out in the written request, I am satisfied that the objectives of the height standard are achieved notwithstanding the noncompliance. In particular, I note:

  • the exceedance is limited to the lift overrun, fire stairs and part of the indoor common area with minor overshadowing resulting from the exceedance.

  • on the basis of the rendered images at p11 of the written request, I accept that the visual impact is minor, and that rooftop landscaping will soften the appearance of the upper level when viewed from the public domain.

  • the central position of the common area and perimeter landscaping have the effect of limiting sightlines to adjoining properties.

  1. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard because the FSR of the proposed development, being a measure of bulk and scale on the site, complies with the control at cl 4.4 of the KLEP, and considering the very minor additional overshadowing resulting from the exceedance which is located on the northern side of the lot ensuring that the majority of shadow falls on the site itself.

  2. As the proposed development is consistent with the objectives of the height standard, and of the zone objectives, I am satisfied that it is in the public interest for the written request to be upheld. In arriving at this state of satisfaction, I have also considered the letter prepared by Megan Geddes Landscape architect dated 9 November 2020 confirming that the depth of soil at the front of the site is sufficient to sustain the canopy trees proposed on Dwg No 20-4145.

  3. Clause 6.2 of the KLEP requires that I consider certain matters in respect of earthworks prior to the grant of consent. I have considered the Geotechnical Assessment report prepared by Alliance Geotechnical dated 17 April 2020 and a Preliminary Site Investigation prepared by Geotechnical Assessment dated 12 May 2020 and I regard the matters at cl 6.2(3) to be sufficient addressed.

  4. The site is within the vicinity of Sydney Airport, and cl 6.5 of the KLEP requires the Applicant to obtain approval for a controlled activity, consistent with s183 of the Airports Act 1996. On the basis of Condition 10 of the conditions of consent, the drawings which confirm the proposed development does not exceed a height of 120 AHD, I am satisfied that this requirement has been, or will be, met.

  5. On the basis of the Preliminary Site Assessment prepared by Alliance Geotechnical and dated 12 May 2020, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land.

  6. As the proposed development is for residential apartment development, the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) apply.

  7. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I note that the Applicant relies upon a statement provided by N Lycenko (Reg No.3010), dated 25 November 2020 that appears to be in a complying form.

  8. Finally, I am satisfied that the application is accompanied by a BASIX certificate (BASIX Certificate, No. 1091123M_02, dated 12 November 2020), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).

  1. 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 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.

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

  3. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to rely on the amended plans and documents set out in Annexure A.

  2. The Applicant is to pay the Respondent’s costs that have been thrown away as a result off the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

  3. The Applicant’s amended written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) prepared by BMA Urban and dated November 2020, seeking a variation of the development standard for minimum lot size for multi dwelling houses, residential flat buildings and seniors housing under cl 4.1A of the KLEP is upheld.

  4. The Applicant’s amended written request under cl 4.6 of the KLEP, prepared by BMA Urban and dated November 2020 seeking a variation of the development standard for height of buildings under cl 4.3 of the KLEP, is upheld.

  5. The appeal is upheld.

  6. Development consent is granted to development application No. DA2020/0223 for demolition works and construction of a residential flat building with basement car parking at 16-18 Elizabeth Street, Allawah, subject to the conditions of consent in Annexure B.

  7. The Respondent is to register the development consent granted in relation to Development Application No. DA-2020/0223 on the NSW planning portal within 14 days of the date or these orders.

…………………..

T Horton

Commissioner of the Court

Annexure A (105731, pdf)

Annexure B (422298, pdf)

Amended Plans (8714684, pdf)

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Decision last updated: 15 December 2020

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