Darc Design & Architecture Pty Ltd v Georges River Council

[2020] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:	Darc Design & Architecture Pty Ltd v Georges River Council [2020] NSWLEC 1177
Hearing dates:	Conciliation conference on 6 April 2020
Date of orders:	14 April 2020
Decision date:	14 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1)   Leave is granted to the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A. (2)   The appeal is upheld. (3)   Development Consent is granted to DA2019/0296 for the demolition of all existing dwellings and outbuildings and the construction of a two storey dual occupancy development with swimming pools and a front fence at 60 Jellicoe Street, Hurstville Grove, subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – dual occupancy – 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
Texts Cited:	Kogarah Development Control Plan 2013 COVID-19 Pandemic Arrangements Policy, Land and Environment Court of New South Wales
Category:	Principal judgment
Parties:	Darc Design & Architecture Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: S Kaoutarani (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/396861
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal by the Georges River Council (the Respondent) of Development Application No. DA2019/0296 for the demolition of an existing dwelling and outbuildings and construction of a two storey dual occupancy development with swimming pools and front fencing at 60 Jellicoe Street, Hurstville Grove (the site).

2. The matter was listed for a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’) on 6 April 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website.

3. Consistent with the Pandemic Policy, the Court arranged a telephone mention with the parties on 1 April 2020, subsequent to which the parties consented to the hearing proceeding by telephone.

4. The conciliation conference commenced on 6 April 2020 by telephone. No objectors provided submissions at the commencement of proceedings, however written submissions were contained in materials provided by the Council prior to the proceedings.

5. 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. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 7 April 2020.

6. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

7. 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 decision agreed by the parties 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.

8. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [12]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. On the basis of the Affidavit of Salam Kaoutarani dated 30 January 2020, and the amended Class 1 Application of the same date, I am satisfied that the Applicant in these proceedings is Mr Hussein Alawie, otherwise known as Mr Sam Alawie, who registered the business name ‘Darc Design Studio’ in April 2019, and is the same person that registered ‘Darc Design & Architecture Pty Ltd’ as a Proprietary Company in November 2019.

2. The site is located within the R2 Low Density Residential zone as identified by the Kogarah Local Environmental Plan 2012 (KLEP). The provisions of the R2 zone permit dual occupancy housing development that is consistent with the objectives of the zone, which are as follows:

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

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

3. The minimum lot size of 650m2 is set out in cl 4.1B of the KLEP for dual occupancy development. As the site area is 689.2m2, I am satisfied that the lot size complies.

4. On the basis of the ‘Cut and Fill Diagrams’ shown at Drawing DA 09B, I have considered the matters set out at subcl 6.2(3) of the KLEP regarding earthworks and I am satisfied that the extent of earthworks required by the development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

5. 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.

9. As the jurisdictional prerequisites to the grant of consent have been addressed 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.

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. 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.

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

1. Leave is granted to the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Consent is granted to DA2019/0296 for the demolition of all existing dwellings and outbuildings and the construction of a two storey dual occupancy development with swimming pools and a front fence at 60 Jellicoe Street, Hurstville Grove, subject to the conditions of consent in Annexure A.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (146 KB)

Plans (3.73 MB)

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Decision last updated: 15 April 2020