Karakatsis Holdings Pty Ltd v Bayside Council

[2020] NSWLEC 1182

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karakatsis Holdings Pty Ltd v Bayside Council [2020] NSWLEC 1182
Hearing dates:	Conciliation conference 4 February 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court Orders that: (1) The Applicant is granted leave to rely on the amended plans referred to in condition 2 of the conditions of consent at Annexure A to these orders. (2) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of the date of these orders. (3) The Applicant’s written request pursuant to clause 4.6 of the Rockdale Local Environmental Plan 2011 (RLEP 2011) to vary the floor space ratio control under clause 4.4 of the RLEP 2011 is upheld. (4) The appeal is upheld. (5) Development application DA-2018/286 for demolition of existing outbuilding, alterations and additions to existing residential flat building, construction of a detached two storey building containing one dwelling resulting in a total of 5 units, formalisation of parking and new landscaping at Lot D DP 374482 is approved subject to the consolidated set of conditions at Annexure A and the plans at Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009
Category:	Principal judgment
Parties:	Karakatsis Holdings Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: J Palmer (Solicitor) (Applicant) J Cole (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/176755
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to a residential flat building at 37 Railway Street, Kogarah, as well as for demolition of an existing outbuilding, construction of a detached two storey building containing one dwelling, formalisation of parking and new landscaping. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 4 February 2020. I presided over the conciliation conference.

3. Following 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. The decision agreed upon 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. The amendments to the development application relate to the built form of the rear building, with the consequence that it is two storeys in height with a smaller footprint than what was previously proposed, which allows increased landscaping and open space on the site. The amendments also provide for a design of the rear building that is sympathetic to some of the original elements of the residential flat building.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Despite the proposed use of the premises as a residential flat building being prohibited under the Rockdale Local Environmental Plan 2011 (“RLEP 2011”), the site benefits from an existing use for the purpose of a residential flat building, pursuant to the definition in s 4.65 of the EPA Act. The documentary evidence obtained by the applicant demonstrates that the use of the premises as residential flat building was permitted by an approval of an application for alterations and additions in 1964 and commenced no later than November 1968 (and likely earlier), has continued thereafter and has not been abandoned. The proposed development is therefore permissible with development consent, pursuant to s 4.67 of the EPA Act and Part 5 of the Environmental Planning and Assessment Regulation 2000, as an enlargement, expansion and intensification of the existing use, as well as alterations to buildings and works used for the existing use.

• I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (“FSR”) development standard. The development standard establishes a maximum FSR of 0.5:1, pursuant to cl 4.4 of the RLEP 2011. The proposed development has a FSR of 0.558:1, which represents a breach of the maximum FSR by 11.68%, with additional floor space of 30.75m2. In accordance with cl 4.6(4)(a) of the RLEP 2011, I am satisfied that the written request (dated 27 March 2020), lodged pursuant to cl 4.6, adequately establishes sufficient environmental planning grounds that justify the breach by demonstrating that the breach enables the land to be used in a way so as to give proper effect to the existing use. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The parties agree, and I accept, that there are no matters arising under cl 50 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 that warrant refusal of the application, particularly having regard to the fact that the application retains the existing dwellings and creates an additional dwelling.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans referred to in condition 2 of the conditions of consent at Annexure A to these orders.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of the date of these orders.

3. The Applicant’s written request pursuant to clause 4.6 of the Rockdale Local Environmental Plan 2011 (RLEP 2011) to vary the floor space ratio control under clause 4.4 of the RLEP 2011 is upheld.

4. The appeal is upheld.

5. Development application DA-2018/286 for demolition of existing outbuilding, alterations and additions to existing residential flat building, construction of a detached two storey building containing one dwelling resulting in a total of 5 units, formalisation of parking and new landscaping at Lot D DP 374482 is approved subject to the consolidated set of conditions at Annexure A and the plans at Annexure B.

………………………

J Gray

Commissioner of the Court

Annexure A (94.3 KB)

Annexure B (17.3 MB)

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Decision last updated: 17 April 2020