Lateral Estate Pty Ltd v Georges River Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lateral Estate Pty Ltd v Georges River Council [2022] NSWLEC 1370

Hearing dates:

Conciliation Conference on 8, 16 June 2022

Date of orders:

14 July 2022

Decision date:

14 July 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification application MOD2022/0013 is approved and development consent DA2018/0139 granted by the Court on 6 August 2019 for the demolition of existing structures and the erection of a thirteen storey mixed use development on the land described as Lots 1 and 2 DP 1257940 known as 32-38 Montgomery St Kogarah is modified in the terms set out in Annexure A.

(3) As a consequence of the modification, development consent DA2018/0139 is subject to the consolidated, modified conditions of consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9, 8.10
Environmental Planning and Assessment Regulation 2000, cll 115, 121B
Environmental Planning and Assessment Regulation 2021, Sch 6 cl 3
Land and Environment Court Act 1979, s 34

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366

Category:

Principal judgment

Parties:

Lateral Estate Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s):

2022/62033

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal relates to the Applicant’s modification application MOD2022/0013 (Modification Application) for the modification of development consent DA2018/0139 granted by the Court on 6 August 2019: Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366 (Consent).

2. The Consent relates to a thirteen storey mixed use development on the land described as Lots 1 and 2 DP 1257940 known as 32-38 Montgomery St, Kogarah (Site).

3. The Modification Application seeks to make various changes to the approved building. The Modification Application was amended on 14 June 2022 with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made but not finally determined before that date: 2021 Regulation, Sch 6 cl 3. The Modification Application was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the Modification Application.

4. As amended, the changes proposed by the Modification Application may be summarised as follows:

• Level 2 – delete skylights opposite lift entry;

• All levels – replace battens in corridors with ceiling;

• Rooftop communal open space – construct a full height glass opposite the lift lobby;

• New pool and cabana;

• Changes to the horizontal façade joint location on…