Mehanna Holdings Pty Ltd v Georges River Council

[2024] NSWLEC 1695

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mehanna Holdings Pty Ltd v Georges River Council [2024] NSWLEC 1695

Hearing dates:

Conciliation conference on 11 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is pay the Respondent’s costs thrown away as a result of the amendments in the agreed amount of $30,000 within 28 days of these orders being made.

(2) The Applicant's written request under clause 4.6 of the Georges River Local Environmental Plan 2021 (GRLEP), prepared by BMA Urban and dated July 2024, seeking a variation of the development standard for height of buildings set out in clause 4.3 of GRLEP, is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application No DA/2023/0074 for the demolition of existing dwellings and construction of a residential flat building consisting of 37 apartments over basement parking on the land at 10, 12 and 14 Vaughan Street, Blakehurst 2221, respectively known as Lots 10, 11 and 12 in Deposited Plan 13988, subject to the conditions contained in Annexure A. 

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – residential flat building – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.7, 6.9, 6.10, 6.11

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, cll 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.120

Category:

Principal judgment

Parties:

Mehanna Holdings Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/294734

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Georges River Council, Development Application No DA/2023/0074 which seeks consent for the demolition of existing dwellings and construction of a residential flat building consisting of 37 apartments over basement parking on the land at 10, 12 and 14 Vaughan Street, Blakehurst 2221, respectively known as Lot 10 in Deposited Plan 13988, Lot 11 in Deposited Plan 13988 and Lot 12 in Deposited Plan 13988

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 October 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included:

1. Reduction of the building height and provision of a satisfactory clause 4.6 variation request;

2. Removal of the floor space ratio (FSR) breach;

3. Amendments to the building design so that the development exhibits design excellence; and

4. Various design amendments to address amenity issues for future residents and adjacent properties.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 18 May to 1 June 2023. No submissions were received during this time.

9. The subject site is zoned R4 High Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a residential flat building is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to GRLEP cl 4.3, a maximum building height of 15m applies to the subject site. The proposed development exceeds this development standard by 900mm (6%) at the highest point, with an overall height of 15.9m. This exceedance is the result of rooftop plant and the lift overrun, and to a small extent, the building parapet.

11. As a result of this exceedance, cl 4.6(3) of the GRLEP allows the applicant to request a contravention of this development standard. This request must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a written request prepared by BMA Urban dated July 2024 (the cl 4.6 request). Pursuant to GRLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request demonstrates that compliance with the Height of Buildings development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of the Height of Buildings development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties due to its siting and form.

2. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The exceedance is the result of the site topography.

2. The lift overrun, which creates the greatest exceedance, facilitates equitable access to rooftop communal open space for the benefit of residents.

3. The exceedance of building height does not result in any unreasonable amenity impact beyond that of a compliant scheme.

3. The contravention is therefore justified by the impact of site topography, the facilitation of equitable access to open space, and the lack of unreasonable adverse amenity impact.

12. GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1.5:1. The proposed development complies with this development standard with a maximum FSR of 1.49:1.

13. The site is not identified as a heritage item, nor located within a heritage conservation area, however it is located in proximity to the heritage listed ‘Carss Bush Park’ at 72-82 Carwar Avenue, Carss Park. This park is approximately 150m to the northeast on the opposite side of Princes Highway and beyond Todd Park. The parties submit, and I accept, that this heritage item is generally outside the visual catchment of the subject site and buffered from view by other intervening built forms and that subsequently, the proposal will not result in any adverse effects on the significance of the heritage item and its setting. Subsequently, a heritage impact statement is not required and the provisions of GRLEP cl 5.10 are met.

14. The site is not identified in the flood planning area.

15. Pursuant to GRLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, and is within 500m of Class 2 and 3 land. Based on the parties’ submission, the Statement of Environmental Effects (SEE), and the architectural elevations and sections (drawings 04A, 04B.1 and 05A), I accept that the proposed works are not below 5m Australian Height Datum and are not likely to lower the water table. Accordingly, an acid sulfate soils management plan is not required and the provisions of cl 6.1 are met.

16. Earthworks are proposed in this application to depths of approximately 9m for the basement construction. Based on the parties’ submission, the Geotechnical Investigation Report dated 23 June 2022, and the Geotechnical Investigation for Infiltration Tests dated 14 November 2023, both by CEC Geotechnical Pty Ltd, I accept that the matters listed in GRLEP cl 6.2 have been considered, and the earthworks proposed in this application are acceptable.

17. From the parties’ submission and the Stormwater Plans by Greenview Consulting dated 24 June 2024, I accept that the proposed development meets the requirements for stormwater management pursuant to GRLEP cl 6.3.

18. GRLEP cl 6.7 relates to airspace operations surrounding Sydney (Kingsford Smith) Airport. Pursuant to the requirements of this clause, the parties submit and I accept that the development application was referred to the Sydney Airport Corporation as the relevant Commonwealth Body, who confirmed in writing on 23 May 2023 that no objection was raised. Due to an identified inconsistency, a clarified response was obtained that omits this inconsistency and maintains no objection, and further clarifies that the proposed development will not penetrate the Limitation or Operation Surface (GRLEP cl 6.7(2)(b)).

19. From the parties’ submission and the service plans by On Point Utility Locating Pty Ltd dated 31 October 2023, the stormwater plans and the amended Traffic and Parking Impact by Stanbury Traffic Planning dated 29 April 2024, I accept that all essential services listed in GRLEP cl 6.9 are able to be provided to the site.

20. As the building is up to 5 storeys and within the R4 High Density Residential zone, pursuant to GRLEP cl 6.10, development consent must not be granted unless the consent authority considers that the development exhibits design excellence. To that end, and with regard to the matters listed in cl 6.10(5), from the parties’ submission and the information contained in the Design Verification Statement by Place Studio dated 1 November 2022 (the Design Verification Statement), I accept that the development exhibits design excellence in accordance with cl 6.10.

21. As the building has a GFA in excess of 1,500m², the environmental sustainability provisions of cl 6.11 apply to the development. Based on the parties’ submission and the amended architectural plans by Place Studio, I accept that the design of the building demonstrates adequate consideration of the sustainability-related matters listed in cl 6.11(3).

22. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development accompanies the application, and is acceptable.

23. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

24. The development proposes work within proximity of electricity transmission infrastructure. Accordingly, pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the development application was referred to Ausgrid who provided a response raising no objections.

25. I further accept, from the Acoustic Assessment by Noise and Sound Services dated July 2023, and the parties’ submission, that the proposed development meets the acoustic requirements of s 2.120 of the Transport and Infrastructure SEPP.

26. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides for the design of residential apartment development. Based on the parties’ submission and the Design Verification Statement, I accept that the matters listed in s 147(1) of the Housing SEPP have been considered, and the development is acceptable pursuant to these matters. I further accept that the application was not referred to a design review panel and that there is no advice to which regard must be had for this development.

27. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) provides for the clearing of vegetation in non-rural areas. In accordance with Ch 2, this application requests the removal of 18 trees. From the parties’ submission, the Arboricultural Impact Assessment Report by Treehaven Enviroscapes dated 11 March 2024, and the Landscape Plans by The Green Boutique dated 24 June 2024, I accept that the requested tree removal and replacement has been assessed and is acceptable.

28. The site is located in the Georges River Catchment and is therefore subject to the provisions of Ch 6 of the Biodiversity and Conservation SEPP. From the parties’ submission and the stormwater plans, I accept that the matters listed in cll 6.6-6.8 have been considered, and that the impacts of the development on water quality and quantity, aquatic ecology and flooding are acceptable pursuant to the relevant requirements of cll 6.6-6.8. I further accept that the development will have no impact on recreation and public access within the catchment (cl 6.9), nor on any downstream local government area (cl 6.10).

Conclusion

29. For these reasons, 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

30. The Court notes:

1. Georges River Council, as the relevant consent authority, agrees to the Applicant amending Development Application No DA/2023/0074 pursuant to s 38 of the Environmental Planning & Assessment Regulation 2021, to include the following plans and documents:

Tab	Plans	Rev	Date
1.	Architectural Plans prepared by Place Studio
i) Cover Sheet, Drawing Number 0001	8	22 August 2024
ii) Perspective, Drawing Number 0002	5	18 April 2024
iii) Site Analysis, Drawing Number 0004	5	25 March 2024
iv) Context Plan, Drawing Number 0005	1	25 March 2024
v) Context Sections, Drawing Number 0006	1	25 March 2024
vi) Demolition Plan, Drawing Number 0007	5	25 March 2024
viii) Cut and Fill Plan, Drawing Number 0008	2	18 April 2024
x) Construction Management Plan, Drawing Number 0009	2	25 March 2024
xii) Basement B2, Drawing Number 1000	8	21 June 2024
xiv) Basement B1, Drawing Number 1001	9	21 June 2024
xvi) Lower Ground, Drawing Number 2000	9	21 June 2024
xviii) Ground, Drawing Number 2001	10	22 August 2024
xx) Level 01, Drawing Number 3001	9	21 June 2024
xxii) Level 02, Drawing Number 3002	9	21 June 2024
xxiv) Level 03, Drawing Number 3003	10	22 August 2024
xxvi) Roof Plan, Drawing Number 3004	6	18 April 2024
xxviii) NW & SE (Side) Elevations, Drawing Number 4001	7	21 June 2024
xxx) SW (Front) & NE Elevations, Drawing Number 4002	6	18 April 2024
xxxii) Vaughan Street Context Elevation, Drawing Number 4003	3	21 June 2024
xxxiv) Overall Section AA, Drawing Number 5001	3	21 June 2024
xxxvi) Overall Section BB, Drawing Number 5002	3	21 June 2024
xxxviii) Detail Section - OSD, Drawing Number 5102	3	21 June 2024
xl) Detail Section – Driveway Ramp, Drawing Number 5103	2	18 April 2024
xlii) Window Schedule, Drawing Number 7003	6	18 April 2024
xliv) Shadow Diagrams – Existing, Drawing Number 8080	7	21 June 2024
xlvi) Shadow Diagrams – Proposed, Drawing Number 8081	3	21 June 2024
xlviii) Vertical Shadow Diagrams, Drawing Number 8082	7	21 June 2024
l) Solar View – June 21 9.00am, Drawing Number 8090	9	21 June 2024
lii) Solar View – June 21 9.30am, Drawing Number 8095	9	21 June 2024
liv) Solar View – June 21 10.00am, Drawing Number 8100	9	21 June 2024
lvi) Solar View – June 21 10.30am, Drawing Number 8105	9	21 June 2024
lviii) Solar View – June 21 11.00am, Drawing Number 8110	9	21 June 2024
lx) Solar View – June 21 11.30am, Drawing Number 8115	9	21 June 2024
lxii) Solar View – June 21 12.00pm, Drawing Number 8120	9	21 June 2024
lxiv) Solar View – June 21 12.30pm, Drawing Number 8125	9	21 June 2024
lxvi) Solar View – June 21 1.00pm, Drawing Number 8130	9	21 June 2024
lxviii) Solar View – June 21 1.30pm, Drawing Number 8131	9	21 June 2024
lxx) Solar View – June 21 2.00pm, Drawing Number 8140	9	21 June 2024
lxxii) Solar View – June 21 2.30pm, Drawing Number 8145	9	21 June 2024
lxxiv) Solar View – June 21 3.00pm, Drawing Number 8150	9	21 June 2024
lxxvi) Solar Access Area Plans, Drawing Number 8200	4	21 June 2024
lxxviii) Cross Ventilation Area Plans, Drawing Number 8300	3	18 April 2024
lxxx) GFA Calculations, Drawing Number 9001	7	18 April 2024
lxxxii) Landscape Calculations, Drawing Number 9002	6	18 April 2024
lxxxiv) Deep Soil Calculations, Drawing Number 9003	6	18 April 2024
lxxxvi) Communal Open Space Calculations, Drawing Number 9004	6	18 April 2024
lxxxviii) Storage Compliance, Drawing Number 9005	2	21 June 2024
xc) Height Compliance, Drawing Number 9100	9	22 August 2024
xcii) Schedule of Finishes, Drawing Number 9200	5	18 April 2024
xciv) 2 Bed Livable Unit, Drawing Number 9500	4	18 April 2024
xcvi) 2 Bed Adaptable/Livable Unit, Drawing Number 9501	4	18 April 2024
xcviii) 2 Bed Adaptable/Livable Unit, Drawing Number 9502	4	18 April 2024
c) 3 Bed Adaptable/Livable Unit, Drawing Number 9503	4	18 April 2024
cii) 2 Bed Adaptable/Livable, Drawing Number 9504	4	18 April 2024
2.	Landscape Plans prepared by The Green Boutique
i) Cover Page, Drawing Number 001	I	24 June 2024
iii) Lower Ground Plan, Drawing Number 002	I	24 June 2024
v) Ground Plan, Drawing Number 003	I	24 June 2024
vii) Communal Roof Plan, Drawing Number 004	I	24 June 2024
ix) Lower Ground Planting, Drawing Number 005	I	24 June 2024
xi) Ground Planting, Drawing Number 006	I	24 June 2024
xiii) Communal Roof Planting, Drawing Number 007	I	24 June 2024
xv) Plant Schedule, Drawing Number 008	I	24 June 2024
xvii) Typical Details & Notes, Drawing Number 009	I	24 June 2024
3.	Stormwater Plans prepared by Greenview Consulting
i) Notes & Legends, Drawing Number C01	6	24 June 2024
iii) Basement 2 Drainage Plan, Drawing Number C02	3	24 June 2024
v) Basement 1 Drainage Plan, Drawing Number C03	6	24 June 2024
vii) Ground Floor Drainage Plan, Drawing Number C04	7	24 June 2024
ix) Site Stormwater Details Sheet 1, Drawing Number C05	6	24 June 2024
xi) Site Stormwater Details Sheet 2, Drawing Number C06	2	24 June 2024
xiii) Road Frontage Plan, Drawing Number C07	5	24 June 2024
xv) Site Area Calculation Plan, Drawing Number C08	4	24 June 2024
xvii) Absorption Calculations Sheet, Drawing Number C09	2	24 June 2024
xix) WSUD Catchment Plan, Drawing Number C10	2	24 June 2024
xxi) MUSIC Modelling, Drawing Number C11	2	24 June 2024
Reports and Documents	Rev	Date
4.	Basix Commitment Table	-	-
5.	Plan showing services along the frontage of 10 Vaughan Street prepared by Onpoint Utility Locating	1	1 November 2023
6.	Geotechnical Investigation for Infiltration Tests (Absorption Rate) prepared by CEC Geotechnical	-	14 November 2023
7.	Updated Owner’s Consent Form	-	29 February 2024
8.	Arboricultural Impact Assessment Report prepared by Treehaven Environscapes	-	11 March 2024
9.	HGL Analysis for proposed Residential Development prepared by Greenview Consulting	1	18 April 2024
10.	Updated Traffic & Parking Impact Assessment prepared by Stanbury Traffic Planning	-	29 April 2024
11.	BASIX Certificate No. 1317776M_05	-	30 September 2024
12.	NatHERS Summary	-	29 June 2024
13.	NatHERS Certificate for Units	-	29 June 2024
14.	Clause 4.6 Variation Statement (cl 4.3 Height) prepared by BMA Urban	-	July 2024
15.	Operational Waste Management Plan prepared by Elephants Foot Company	C	2 July 2024
16.	Sydney Airport Referral Response	-	18 July 2024

31. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is pay the Respondent’s costs thrown away as a result of the amendments in the agreed amount of $30,000 within 28 days of these orders being made.

2. The Applicant's written request under clause 4.6 of the Georges River Local Environmental Plan 2021 (GRLEP), prepared by BMA Urban and dated July 2024, seeking a variation of the development standard for height of buildings set out in clause 4.3 of GRLEP, is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application No DA/2023/0074 for the demolition of existing dwellings and construction of a residential flat building consisting of 37 apartments over basement parking on the land at 10, 12 and 14 Vaughan Street, Blakehurst 2221, respectively known as Lot 10 in Deposited Plan 13988, Lot 11 in Deposited Plan 13988 and Lot 12 in Deposited Plan 13988, subject to the conditions contained in Annexure A. 

E Washington

Commissioner of the Court

294734.23 Annexure A

**********

Decision last updated: 31 October 2024