Icon Construction Group Pty Ltd v Georges River Council

[2019] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:	Icon Construction Group Pty Ltd v Georges River Council [2019] NSWLEC 1517
Hearing dates:	Conciliation Conference on 18 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The appeal is upheld. (2) Modification Application MOD2019/0117 to remove one level of basement car parking, resulting in 4 levels of basement car parking and a total of 56 off-street car parking spaces, is approved, subject to the consolidated conditions of consent at Annexure A.
Catchwords:	MODIFICATION APPLICATION – remove one level of basement car parking and reduce the total number of off street car parking spaces from 70 to 56 – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Cases Cited:	Icon Construction Group Pty Limited v Georges River Council [2019] NSWLEC 1156
Texts Cited:	Kogarah Development Control Plan 2012
Category:	Principal judgment
Parties:	Icon Construction Group Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) J Ware (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Georges River Council (Respondent)
File Number(s):	2019/204549
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a modification application made to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 2018/0138 issued on 5 April 2019 (Icon Construction Group Pty Limited v Georges River Council [2019] NSWLEC 1156) for the partial demolition of existing buildings, partial restoration of the heritage listed terraces and construction of a part 10/11 storey commercial building with 5 levels of basement car parking containing 70 car parking spaces (the approved development) at 22-26 Montgomery Street, Kogarah (the site).

2. The proposal is to remove one level of basement car parking, resulting in 4 levels of basement car parking and to reduce the total number of off-street car parking spaced provided from 70 to 56. The proposal includes the provision of an additional off-street car parking space in Basement Level 4, previously occupied by the ramp to Basement Level 5.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the applicant and the respondent, Georges River Council (the Council), which has been held on 18 October 2019. I presided over the conciliation conference.

4. 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.

5. 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 4.55(8) of the EPA Act to modify the development consent granted by the Court.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to ss 4.55(8) and 5.10(4) of the EPA Act.

7. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. The parties agreed that the there was an error made in the calculation of the car parking requirement at the time of the original assessment and that 59 off-street car parking spaces are required under the Kogarah Development Control Plan 2012. The error came about due to floor areas of parts of the building that did not generate parking demand being included in the car parking requirement calculation. There will be a shortfall of 3 car parking spaces following the modification of the consent and the parties agreed to condition 18 being amended to provide an additional monetary contribution of $102,154.47 in lieu of 3 off-street car parking spaces.

8. The deletion of 14 car parking spaces and one level of the basement car parking, results in a development that is substantially the same as the original development for which consent was granted, and the modification is of minimal environmental impact because it results in a smaller building envelope than the approved development and requires less excavation.

9. I have considered the effect of the proposal on the heritage significance of the terraces, “Leah Building” (Item 83, Schedule 5 of Kogarah Local Environmental Plan 2012) and I am satisfied that the proposal will not impact the identified heritage significance of the terraces because the heritage item is retained in the approved development and the modification of the approved development does not affect the heritage item.

Orders

10. The orders of the Court are:

1. The appeal is upheld.

2. Modification Application MOD2019/0117 to remove one level of basement car parking, resulting in 4 levels of basement car parking and a total of 56 off-street car parking spaces, is approved, subject to the consolidated conditions of consent at Annexure A.

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Susan O’Neill

Commissioner of the Court

Annexure A (506 KB)

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Decision last updated: 31 October 2019