Lateral Estate Pty Ltd v Georges River Council

[2019] NSWLEC 1366

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lateral Estate Pty Ltd v Georges River Council [2019] NSWLEC 1366
Hearing dates:	Conciliation conference on 29 July 2019
Date of orders:	06 August 2019
Decision date:	06 August 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the amended material, copies of which are behind Annexure ‘A’: (2) The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the amount of $70,000.00 within twenty eight (28) days. (3) The written request to depart from the height of buildings standard on the site set out in "Amended Clause 4.6 Variation - HOB" variation request prepared by Planning Ingenuity dated 5 July 2019 pursuant to the LEP is upheld. (4) The written request to depart from the floor space ratio standard on the site set out in "Precautionary Clause 4.6 Variation – Floor Space Ratio" variation request prepared by Planning Ingenuity dated 24 June 2019 pursuant to the LEP is upheld. (5)   The appeal is upheld. (6)   Development Application No. DA/2018/0139, as amended in accordance with the above plans and documents, for the demolition of existing structures and construction of a thirteen (13) storey mixed use development comprising a residential flat building with sixty-one (61) apartments over 1,110m² of retail and commercial space on the ground and first floor at 32-38 Montgomery Street, Kogarah (Lot B in DP332533 and Lot 47 Section E in DP1397) is approved subject to the conditions in Annexure ‘B’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Airports Act 1996 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Texts Cited:	Kogarah Development Control Plan 2013
Category:	Principal judgment
Parties:	Lateral Estate Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: T To (Applicant) M Staunton (Respondent)   Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent)
File Number(s):	2018/260971
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Georges River Council's deemed refusal of Development Application No. 2018/0139.

2. The applicant seeks consent to undertake demolition of existing structures and construction of a thirteen storey mixed use development comprising a residential flat building with 61 apartments over 1110m2 of retail and commercial space on the ground and first floor at 32-38 Montgomery Street, Kogarah also known as Lot B in DP332533 and Lot 47 Section E in DP1397 (‘site’).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 29 July 2019, and at which I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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.

Jurisdiction

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings. In regard to jurisdiction, I note the following:

1. The subject site is zoned B4 - Mixed Use under Kogarah Local Environmental Plan 2012 (‘LEP’) and the proposal is permissible under that zone (in accordance with cl 2.3(2) of the LEP, I have had regard to the relevant zone objectives).

2. The construction of the proposed building would constitute a controlled activity under s 182 of the Airports Act 1996 (Cth) as the building height would bring about a penetration into controlled airspace. Under cl 6.5(2) of the LEP, a consent authority must not grant consent to development that is a controlled activity unless the applicant has obtained approval for the controlled activity under relevant regulations. I have viewed the controlled activity approval for the proposal granted by the Commonwealth Department of Infrastructure, Regional Development and Cities and I am satisfied that the provisions of cl 6.5 are met.

3. In accordance with cl 7 (1) of State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) a Detailed Site Investigation was prepared that outlines that the site is suitable for the proposed development in its current state. I am satisfied in regard to cl 7(1) of SEPP 55 including in regard to the potential for new information that may come to light during demolition or construction in regard to site contamination, noting the inclusion of a condition requiring notification should this occur.

4. The requirements of cl 30(2) of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) are met in that the Applicants’ architect has prepared a Design Verification Statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000. For the purposes of cll 143A and 154A of the Environmental Planning and Assessment Regulation 2000, compliance with SEPP 65 is required.

5. The proposal contravenes development standards in relation to height and floor space ratio (FSR) contained in the LEP. Clause 4.6 of the LEP provides for exceptions to development standards. The Council is satisfied that the written request satisfies the requirements established in cl 4.6 of the LEP. While I note this, it is incumbent on the Court to make its own assessment in this matter. I do so below.

Height of building contravention

7. Clause 4.3 of the LEP provides a maximum height for buildings of 39m for the site. The maximum building height is indicated as 43.47m, with this indicated as “top of lift overrun & fire egress stairs”. Drawing DA806 Revision BB (part of the consent documentation) indicates that by far the major portion of the building’s roof level is compliant with the control.

8. The applicant seeks a variation to this development standard and has lodged a written request pursuant to cl 4.6 of the LEP, prepared by Planning Ingenuity Pty Ltd and dated 5 July 2019. I have reviewed the written request and I am satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6(4)(a)(i) of the LEP for the following reasons (using the findings established in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 for decision framing purposes):

1. The written request has adequately demonstrated that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case. This has occurred through demonstrating that compliance with the objectives of the standard has been achieved, notwithstanding the non-compliance. Specifically, it was indicated that:

1. overshadowing impact would be minimised because the non-compliant elements of the building would not cause material additional impact (in fact it would be the compliant components of the building which would bring about more material impacts – albeit, according to the Planning Ingenuity Report, impacts expected from the current controls).

2. Visual impact would be minimised because except for the lift overrun and firestairs, the non-compliant elements would not be generally apparent from the public domain.

3. Privacy impact would be minimised as non-compliant parapets were recessed such that there was no line of sight to relevant areas of adjoining properties.

4. The “scale and intensity of development” (including the relatively minor height non-compliance) was appropriate given that it was the inclusion of the community recreation space on the roof (and thus non-compliance) which effected the achievement of the building’s southern side setback (above parapet level) seen by Council as a means of addressing building scale and intensity issues in the streetscape (reference Respondent’s Statement of Facts and Contentions filed 28 May 2019).

2. The written request has also adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. This is through its indication that the (relatively minor) height exceedance was instrumental in delivering other planning benefits, most important of which was facilitating the side setback to the southern boundary an important planning ambition of the Council.

9. In regard to cl 4.6(4)(a)(ii) of the LEP, I am also directly satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. I rely on the written submission in regard to the consistency with the objectives of the development standard (see above). In regard to the B4 - Mixed Use zone objectives I note the proposal as an integrated, mixed use development with good degrees of compatibility and good transport access, which can assist in contributing to an active, sustainable and vibrant town centre. In this sense the development seems entirely consistent with the zone objectives.

10. In regard to cl 4.6(4)(b) of the LEP, it is my view that this proposal does not raise any matters of State or regional significance in planning terms, and as such this provision is of no concern in regard to this proposal.

Floor space ratio contravention

11. Clause 4.4 of the LEP provides for a maximum FSR of 4.5:1. It is indicated that the proposed FSR is 4.66:1.

12. The applicant seeks a variation to this development standard and has lodged a written request pursuant to cl 4.6 of the LEP, prepared by Planning Ingenuity Pty Ltd and dated 24 June 2019. I have reviewed the written request and I am also satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions of cl 4.6(4)(a)(i) of the LEP for the following reasons (again using the findings established in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 as a guide):

1. The written request has adequately demonstrated that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case. This has occurred through demonstrating that compliance with the objectives of the standard has been achieved, notwithstanding the non-compliance. Specifically, it was indicated that The proposed variation to the FSR would not lead to an incompatibly intense development (mindful of the first objective of the standard) as this concern in regard to intensity would be centred on number of bedrooms or the like, whereas in this case the exceedance was centred on the provision of additional parking. Similarly, the additional basement parking would not reasonably be seen as affecting the “bulk and scale of development” (mindful of the second objective of the standard).

2. The written request has also adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. This is through its indication that the proposed parking numbers were generally in accordance with what had been established as local parking requirements as documented in Kogarah Development Control Plan 2013 (Section E).

13. In regard to cl 4.6(4)(a)(ii) of the LEP, I am also directly satisfied that the proposal will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. I again rely on the written submission in regard to the question of consistency with the objectives of the development standard (see above). In regard to the B4 zone objectives I have previously determined that the development seems entirely consistent with the zone objectives.

14. I have also determined in regard to cl 4.6(4)(b) of the LEP that this proposal does not raise any matters of State or regional significance in planning terms, and as such this provision does not concern me in regard to this proposal.

Other matters

15. Further I have reviewed and taken into account Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment, in particular the provisions at cl 8.

16. I am also satisfied that consideration has been given to public submissions. These submissions have been considerations in the various modifications to the proposal leading to the agreement. I particularly note that conditions of consent are included to address potential acoustic impacts of the proposal.

17. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position.

18. The Court orders:

1. The Applicant is granted leave to rely upon the amended material referred to in Annexure ‘A’:

2. The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the amount of $70,000.00 within twenty eight (28) days.

3. The written request to depart from the height of buildings standard on the site set out in "Amended Clause 4.6 Variation - HOB" variation request prepared by Planning Ingenuity dated 5 July 2019 pursuant to the LEP is upheld.

4. The written request to depart from the floor space ratio standard on the site set out in "Precautionary Clause 4.6 Variation – Floor Space Ratio" variation request prepared by Planning Ingenuity dated 24 June 2019 pursuant to the LEP is upheld.

5. The appeal is upheld.

6. Development Application No. DA/2018/0139, as amended in accordance with the above plans and documents, for the demolition of existing structures and construction of a thirteen (13) storey mixed use development comprising a residential flat building with sixty-one (61) apartments over 1,110m² of retail and commercial space on the ground and first floor at 32-38 Montgomery Street, Kogarah (Lot B in DP332533 and Lot 47 Section E in DP1397) is approved subject to the conditions in Annexure ‘B’.

……………………….

P Walsh

Commissioner of the Court

Annexure A (129 KB, pdf)

Annexure B (606 KB, pdf)

Plans_Part1 (7.39 MB, pdf)

Plans_Part2 (10.4 MB, pdf)

Plans_Part3 (6.35 MB, pdf)

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Amendments

22 August 2019 - Pursuant to UCPR r 36.16(3B), by the Court’s own motion, amend the reference number to the Development Application in Order (6), by:
1. replacing the incorrect reference being, “DA/2017/0139”, with the correct reference being, “DA/2018/0139”.

As a consequence, the final orders made on 6 August 2019, as amended on 22 August 2019, are:

(1) The Applicant is granted leave to rely upon the amended material, copies of which are behind Annexure ‘A’:

(2) The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the amount of $70,000.00 within twenty eight (28) days.

(3) The written request to depart from the height of buildings standard on the site set out in "Amended Clause 4.6 Variation - HOB" variation request prepared by Planning Ingenuity dated 5 July 2019 pursuant to the LEP is upheld.

(4) The written request to depart from the floor space ratio standard on the site set out in "Precautionary Clause 4.6 Variation – Floor Space Ratio" variation request prepared by Planning Ingenuity dated 24 June 2019 pursuant to the LEP is upheld.

(5) The appeal is upheld.

(6) Development Application No. DA/2018/0139, as amended in accordance with the above plans and documents, for the demolition of existing structures and construction of a thirteen (13) storey mixed use development comprising a residential flat building with sixty-one (61) apartments over 1,110m² of retail and commercial space on the ground and first floor at 32-38 Montgomery Street, Kogarah (Lot B in DP332533 and Lot 47 Section E in DP1397) is approved subject to the conditions in Annexure ‘B’.

Decision last updated: 22 August 2019