Lioncrest Capital Holdings Pty Ltd v Georges River Council

[2023] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lioncrest Capital Holdings Pty Ltd v Georges River Council [2023] NSWLEC 1356

Hearing dates:

Conciliation conference on 9 June 2023

Date of orders:

11 July 2023

Decision date:

11 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA2021/0478, which seeks consent for the demolition of existing dwellings and ancillary structures and construction of a five-storey residential flat building over basement parking at 6-10 Torrens Street, Blakehurst, is determined by the grant of consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 50

Environmental Planning and Assessment Regulation 2021, s 37

Georges Local Environmental Plan 2021, cll 2.3, 2,7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.9, 6.10, 6.11. 6.12

Greater Metropolitan Regional Environmental Plan No 2 (Georges River Catchment) 1999

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chs 2, 11

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development 2000, cll 28, 30

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 6

Texts Cited:

Georges River Community Engagement Plan 2017

Georges River Development Control Plan 2021

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Standards Australia, Australian Standard AS 2601-2001: The Demolition of Structures, 2001

Category:

Principal judgment

Parties:

Lioncrest Capital Holdings Pty Limited (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/25659

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Lioncrest Pty Ltd (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of its Development Application No DA2021/0478 (the DA), made with owner’s consent, seeking consent for demolition of the existing dwellings and ancillary structures and construction of a five-storey residential flat building comprising 33 dwellings, over basement car parking (the Proposed Development) at 6-10 Torrens Street, Blakehurst (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s DA was notified from 21 January 2022 and 10 February 2022 pursuant to the provisions of the Georges River Community Engagement Plan 2017, and five submissions were received in response to the notification. These submissions have been considered during the development assessment process.

4. On 9 June 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. No site view of the subject site was undertaken during the conciliation conference and no objectors had sought to make submissions in relation to the Proposed Development.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) the Applicant has provided a BASIX Certificate No. 1245729M_03 dated 16 September 2022 issued by BCA Energy in satisfaction of the provisions of SEPP BASIX;

2. in relation to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development 2000 (SEPP 65):

1. the DA, as amended, is supported by an Architectural Design Statement (the Design Statement) prepared by Vic Lake Architects in satisfaction of the provisions of cl 50(1A) of Environmental Planning and Assessment Regulation 2000;

2. clause 28(2) of SEPP 65 requires the consent authority, or the Court on appeal, to take into consideration the advice (if any) from the design review panel, the design quality of the development and the provisions of the NSW Planning & Environment Apartment Design Guide 2015 (ADG), and in relation to these matters:

1. the Proposed Development has not been considered by a design review panel;

2. I am satisfied that the design quality of the Proposed Development has been considered including through consideration of the Design Statement by the Parties in reaching agreement;

3. I am also satisfied that the provisions of the ADG have been considered by the Parties in reaching their agreement in this matter, including through consideration of matters addressed within the Applicant’s Design Statement; and

3. while the provisions of cl 30 of SEPP 65 is relevant to the Proposed Development, those provisions are not a jurisdictional requirement as they provide a series of ‘must not refuse’ criteria which, if these controls are satisfied, the consent authority, or Court on appeal, cannot refuse to grant consent on those grounds

3. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), incorporating the provisions of the former, and now repealed, State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Ch 2 of SEPP B&C) (former SEPP) and Greater Metropolitan Regional Environmental Plan No 2 (Georges River Catchment) 1999 (Ch 11 of SEPP B&C); and

1. while the provisions of Ch 2 of SEPP B&C applies to development on the Subject Site as it is located within an urban area, the terms of Ch 2 do not include any jurisdictional considerations that would preclude the grant of consent to the DA;

2. the provisions of the now repealed Ch 11 of SEPP B&C apply to development on the Subject Site as it was in force at the time that the Applicant’s DA was lodged on 13 December 2021, and in transferring the provisions of former SEPP to SEPP B&C, the provisions of cl 6 of the former SEPP concerning savings provisions were not transferred, and:

1. I am satisfied that the Proposed Development is consistent with the aims and objectives, and with the planning principles, of the former SEPP as confirmed in the Applicant’s stormwater plans dated July 2022 which, inter alia, propose that stormwater from the Proposed Development will be directed to the Council’s stormwater assets in Carss Bush Park;

2. I am also satisfied that the Parties have considered how the Georges River system and its tributaries will be protected from any potential impacts of the Proposed Development Application. The Applicant’s stormwater plans and a supplementary statement from its stormwater engineer confirm that, through the development’s design, and imposition of the Parties agreed conditions of consent numbers 20, 21 and 54, the waters of the Georges River system will be protected in terms of both stormwater quantity and quality;

4. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the existing and historical land use on the Subject Site is for residential purposes, and the Proposed Development is for a continuation of that residential use;

2. the Parties have advised that based on all available information, the Subject Site has not been used for any activities that would have given rise to any potential contamination, and the site is not anticipated to contain any contamination; and

3. I am satisfied that the Subject Site is suitable for its intended use under the Proposed Development, as amended, and that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal

5. in relation to the provisions of Georges River Local Environmental Plan 2021 (GRLEP):

1. the Subject Site is zoned R4 High density residential pursuant to the provisions of cl 2.3 of GRLEP and subdivision, residential flat buildings are permissible with consent in this zone, and regard has been had to the objectives of the R4 zone in determining the Applicant’s DA;

2. the provisions of cl 2.7 require that demolition only be carried out with development consent: and

1. the DA, as amended, proposes demolition of existing structures on the Subject Site;

2. the Applicant has provided a demolition and construction waste management plan, prepared by WasteAudit and dated July 2022, which together with Parties’ agreed conditions of consent enable the grant of consent for the purposes of the proposed demolition works; and

3. the Parties have had regard to the provisions of AS 2601 -2001: The Demolition of Structures, and the DA meets the standard subject to compliance with the Parties’ agreed conditions of consent;

3. in relation to the provisions of cl 4.3 concerning the height of buildings (HoB) the Subject Site is subject to a maximum HoB development standard of 15m and the DA, as amended, proposes a maximum height of 18.251m; and

4. the Applicant has provided a written request pursuant to the provisions of cl 4.6 of GRLEP, prepared by Planning Ingenuity, seeking to vary the HoB standard and the Parties submit, and I am satisfied, that the Applicant’s written request is well founded and that the variation to the HoB development standard is acceptable noting that:

1. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of GRLEP because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicant’s written request, which I adopt;

2. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of GRLEP, for the reasons identified in the written request, which I adopt, including those concerning the sloping topography of the Subject Site and the requirement to provide equitable access to the street to adaptable units at the rear of the development;

3. approval of the Proposed Development will be in the public interest for the reasons provided above (at [(i)] and [(ii]) and because the proposed development is consistent with the objectives for the HoB development standard, as well as for development within the R4 zoning of the subject site for reasons provided within the Applicant’s written request, which I also adopt;

5. in relation to the provisions of cl 4.4 of GRLEP concerning floor space ratio (FSR), the Subject Site is subject to a maximum FSR development standard of 1.5:1 and the DA, as amended complies with this standard as confirmed in the Applicant’s amended architectural plans prepared by Vic Lake Architects dated 31 August 2022;

6. in relation to the provisions of cl 6.1 concerning acid sulfate soils:

1. the Subject Site is identified on the acid sulfate soils map in GRLEP as containing Class 5 acid sulfate soils and it is within 400m of lands containing class 2 and class 3 acid sulfate soils which is below 5m Australian Height Datum (AHD);

2. the Applicant has provided an acid sulphate soil report prepared by Foundation Earth Sciences dated 19 June 2023 confirming that it is unlikely that the water table on that lands containing class 2 and class 3 acid sulfate soils will be lowered by more than 1m AHD; and

3. as a consequence, I am satisfied that an acid sulfate soils management plan is not required for the Applicant’s proposed works and the provisions of cl 6.1 of GRLEP have been addressed;

7. in relation to the provisions of cl 6.2 of GRLEP concerning earthworks:

1. the DA, as amended, proposes excavation works for basement levels which have been designed to ensure that excavation will have a limited impact on the topography of the Subject Site and neighbouring properties, and will not have a detrimental effect on drainage as confirmed by the Applicant’s amended civil works plans, prepared by Greenview Consulting and its excavation plan DA07.07 prepared by Vic Lake Architects dated 31 August 2022, along with the Parties’ agreed conditions of consent; and

2. as a consequence I am satisfied that the provisions of cl 6.2 of GRLEP have been fulfilled;

8. in relation to the provisions of cl 6.3 of GRLEP concerning stormwater management:

1. the Applicant’s stormwater consultant Greenview Consulting has provided an amended plan for the Proposed Development’s stormwater design;

2. based on the Applicant’s amended stormwater management plans, the Parties agree, and I am satisfied that the Proposed Development is designed to maximise the use of water permeable surfaces, includes OSD, avoids adverse impacts of stormwater detention and runoff, and is designed to minimise the impact on public drainage systems’

3. as a consequence, I am satisfied that the stormwater management of the Proposed Development is designed to maximise the use of water permeable surfaces, includes OSD, avoids adverse impacts of stormwater detention and runoff and is designed to minimise the impact on public drainage systems, such that the provisions of cl 6.3 of GRLEP are fulfilled;

9. in relation to the provisions of cl 6.9 of GRLEP concerning essential services, the Subject Site is currently serviced by water, electricity, sewage and direct vehicular and pedestrian access; and

10. the Applicant has also provided deeds of agreement entered into with two neighbours in relation to the provision of a drainage easement required for the Proposed Development consistent with the Applicant’s amended civil plans the Parties’ agreed conditions include a deferred commencement condition (A) to require that the drainage easement which is the subject of the deeds is registered on the title of the relevant lands prior to the commencement of the consent;

11. in relation to the provisions of cl 6.10 of GRLEP concerning design excellence, which applies to the Subject Site as it is zoned R4: High Density Residential:

1. the Applicant has provided an amended design verification statement which confirms that the Proposed Development exhibits design excellence, and that regard has been had to the matters identified in cl 6.10(5) of GRLEP; and

2. I am satisfied that the provisions of cl 6.10 of GRLEP in relation to design excellence have been fulfilled;

12. in relation to the provisions of cl 6.11 of GRLEP concerning environmental sustainability, the Proposed Development has a gross floor area of 3,496.03m² and so is subject to the requirements of cl 6.11(3) of GRLEP, and:

1. noting the Applicant’s provision of its Design Statement and BASIX Certificate (see above at [(1)] and [(2)]) the Parties have confirmed that the matters identified at cl 6.11(3) of GRLEP have been adequately considered; and

2. I am satisfied that the Proposed Development, as amended, is responsive to the design considerations in cl 6.11 of GRLEP in relation to best practice environmentally sensitive design, and therefore, the provisions of cl 6.11 are fulfilled;

13. in relation to the provisions of cl 6.12(5)(f) of GRLEP concerning the area of landscaping to be provided within the Proposed Development, the Applicant’s drawing 03.02(F) of the amended architectural plans dated 31 August 2022 confirm that the Proposed Development, as amended, includes a total of 531m² (or 24% of the Subject Site) as landscaped area in satisfaction of this subclause;

6. in relation to the provisions of Georges River Development Control Plan 2021 (GRDCP) the Parties have advised, and I am satisfied, that the Proposed Development, as amended, meets the relevant controls within GRDCP, or if not, the Proposed Development, as amended, achieves the objectives of those controls such that it represents a reasonable alternative solution meriting the application of flexibility in the application of those controls as required under the provisions of s 4.15(3A)(2) of the EP&A Act;

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s DA;

2. the Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EP&A Act, including the submissions received in response to notification which have been considered by the Parties in reaching agreement;

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that:

1. the Respondent, Georges River Council, as the relevant consent authority, has agreed to the Applicant amending Development Application No. DA2021/0478 in accordance with the documents listed in Annexure B (‘Third Further Amended Application’) pursuant to the provisions of s 37(1) of the Environmental Planning and Assessment Regulation 2021; and

2. the Applicant filed the Third Further Amended Application with the Court on 9 June 2023.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2021/0478, which seeks consent for the demolition of existing dwellings and ancillary structures and construction of a five-storey residential flat building over basement parking at 6-10 Torrens Street, Blakehurst, is determined by the grant of consent subject to the conditions of consent in Annexure A.

M Chilcott

Commissioner of the Court

(Annexure A) (463121, pdf)

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Decision last updated: 11 July 2023