Icon Construction Group Pty Ltd v Georges River Council

[2019] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:	Icon Construction Group Pty Ltd v Georges River Council [2019] NSWLEC 1156
Hearing dates:	Conciliation conference on 5 April 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – exceedance of the height of buildings development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Kogarah Local Environmental Plan 2012
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Category:	Principal judgment
Parties:	Icon Construction Group Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) S Wilson, Georges River Council (Respondent)
File Number(s):	2018/167910
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2018/0138 for the partial demolition of existing buildings, partial restoration of the heritage listed terraces and construction of a part 10/11 storey and rooftop commercial development and basement car parking (the proposal) at 22-26 Montgomery Street, Kogarah (the site) by Georges River Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 April 2019. 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, on the basis of agreed amendments to the proposed development.

4. 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 EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 5.10(4) of the Kogarah Local Environmental Plan 2012 (LEP 2012).

6. I have considered the effect of the proposed development on the heritage significance of the terraces, “Leah Building” (Item 83, Schedule 5 of LEP 2012) and I am satisfied that the proposal has an acceptable impact on the identified heritage significance of those buildings because they are retained by the proposal.

Orders

7. The orders of the Court are:

1. The applicant is granted leave to amend the Development Application by relying on amended plans listed in condition 1 of the conditions of consent at Annexure A.

2. The applicant is to pay the respondent’s costs in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the amount of $12,000 within 21 days from the date of these orders.

3. The appeal is upheld.

4. Development Application No. 2018/0138 for the partial demolition of existing buildings, partial restoration of the heritage listed terraces and construction of a part 10/11 storey and rooftop commercial development and basement car parking at 22-26 Montgomery Street, Kogarah, is approved, subject to the conditions of consent at Annexure A.

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Susan O’Neill

Commissioner of the Court

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Annexure A