Kogarah Investments No. 1 Pty Ltd v Georges River Council

[2020] NSWLEC 1214

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kogarah Investments No. 1 Pty Ltd v Georges River Council [2020] NSWLEC 1214
Hearing dates:	Conciliation conference held on 8 May 2020
Date of orders:	15 May 2020
Decision date:	15 May 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) Leave is granted for the Applicant to amend the application to rely on the amended and additional plans, drawings and materials listed in Section A, Condition 1 of the Conditions of Consent at Annexure A. (2) The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5000 on or before 5 June 2020. (3) The clause 4.6 written request to vary the height of buildings development standard under cl 4.3 of the Kogarah Local Environmental Plan 2012 is upheld. (4) Development Application No. 2019/0319 for the retention and conservation of the local heritage item at 2 Victoria Street, the demolition of other structures and the construction of an 11 storey residential flat building containing 77 units and including 3 levels of basement car parking, at 16-22A Gladstone Street and 2 Victoria Street, Kogarah, is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – retention and conservation of a cottage identified as a local heritage item and construction of a residential flat building – 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:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Kogarah Investments No. 1 Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: B Salon (Solicitor) (Applicant) S Wilson (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent)
File Number(s):	2019/283937
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. 2019/0319 for the retention and conservation of the local heritage item at 2 Victoria Street, Kogarah, the demolition of other structures and the construction of an 11 storey residential flat building containing 77 units and including 3 levels of basement car parking (the proposal), at 16-22A Gladstone Street and 2 Victoria Street, Kogarah (the site) by Georges River Council (the Council).

2. The proposal is for 77 units as follows:

• 16 x studio apartments;

• 19 x 1 bedroom apartments;

• 41 x 2 bedroom apartments; and

• 1 x 3 bedroom apartment.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 8 May 2020 by telephone. 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 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 4.6(2) and 5.10(4) of the Kogarah Local Environmental Plan 2012 (LEP 2012).

Planning framework

7. The site is zoned R4 High Density Residential pursuant to LEP 2012 (Land Zoning Map – Sheet LZN_006). The objectives of the zone, to which regard must be had, are:

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

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

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

8. The height of buildings development standard for the site is 33m (cl 4.3 and Height of Buildings Map – Sheet HOB_006 of LEP 2012). The objectives of the height of buildings development standard, at cl 4.3(1) of LEP 2012, are:

(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.

9. 2 Victoria Street, Kogarah, is identified as a local heritage item, “house and garden Hindmarsh” (Item 110, Schedule 5, LEP 2012).

Contravention of the height of buildings development standard

10. The proposal has a maximum height of 34.65m. The applicant provided a written request seeking to justify the contravention of the height of buildings development standard, prepared by City Plan and dated August 2019.

11. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]). The consent authority, or the Court on appeal, must be satisfied that the applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposal development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

12. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act, but should still consider the matters in cl 4.6(5) (Initial Action [29]).

The applicant’s written request to contravene the height of buildings development standard

13. The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant’s written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard

14. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]). The consent authority has to be satisfied that the applicant’s written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) and not simply that the applicant has addressed those matters (RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [4]).

15. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the council; and

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

16. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

17. The applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the exceedance of the development standard is confined to the lift overrun and the lift lobby which provide all residents with access to a rooftop communal open space and the volume of the building that is above the development standard does not include any habitable floor space.

18. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]).

19. I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard as a means to providing equitable access to a communal open space on the rooftop. I am satisfied that, in all the circumstances of this matter, justifying the aspect of the development that contravenes the development standard as can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].

Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone

20. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).

21. I am satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the zone, for the reasons given by the applicant in the written request.

Heritage

22. I have considered the effect of the proposed development on the heritage significance of the heritage item, pursuant to cl 5.10(4) of LEP 2012, and I am satisfied that the amended proposal will have an acceptable impact on the identified heritage significance of the house and garden because the applicant has provided a complete suite of heritage assessments and documentation, including a Conservation Management Plan, and the proposal includes detailed commitments to the conservation of the heritage item.

Orders

23. The orders of the Court are:

1. Leave is granted for the Applicant to amend the application to rely on the amended and additional plans, drawings and materials listed in Section A, Condition 1 of the Conditions of Consent at Annexure A.

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979 in the amount of $5000 on or before 5 June 2020.

3. The clause 4.6 written request to vary the height of buildings development standard under cl 4.3 of the Kogarah Local Environmental Plan 2012 is upheld.

4. Development Application No. 2019/0319 for the retention and conservation of the local heritage item at 2 Victoria Street, the demolition of other structures and the construction of an 11 storey residential flat building containing 77 units and including 3 levels of basement car parking, at 16-22A Gladstone Street and 2 Victoria Street, Kogarah, is approved, subject to the conditions of consent at Annexure A.

_________________

Susan O’Neill

Commissioner of the Court

Annexure A (273 KB)

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Decision last updated: 15 May 2020