Murr v Georges River Council

[2023] NSWLEC 1715

Land and Environment Court

New South Wales

Medium Neutral Citation:

Murr v Georges River Council [2023] NSWLEC 1715

Hearing dates:

Conciliation conference on 31 January 2023 and 21 February 2023

Date of orders:

27 November 2023

Decision date:

27 November 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The Applicant’s written request prepared by GAT & Associates Pty Ltd dated May 2023 pursuant to clause 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) to vary the building height development standard in clause 4.3 of the KLEP is upheld.

(3) The Applicant’s written request prepared by GAT & Associates Pty Ltd dated June 2023 pursuant to clause 4.6 of the KLEP to vary the floor space ratio development standard in clause 4.4 of the KLEP is upheld.

(4) The appeal is upheld.

(5) Development consent is granted to Development Application No DA2020/0190 for demolition of existing structures and construction of a 12 storey mixed use development, 3 retail tenancies, 5 levels of basement and stratum subdivision at 21 Hogben Street, Kogarah, in the terms set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – mixed use building – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Kogarah Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6, 5.6, 6.2, 6.5

Texts Cited:

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

Kogarah Development Control Plan 2013

Category:

Principal judgment

Parties:

Michael Murr (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2022/273362

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council (the Council) of Development Application DA2020/0190 (the DA) which seeks consent to demolish an existing three to four storey walk up residential flat building and structures and construct a mixed use development containing residential apartments and ground floor retail space at 21 Hogben Street, Kogarah, formally identified as SP 5400 (the Site),

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 January 2023.

3. I presided over the conciliation conference and adjourned the conference on several occasions to allow the further amended plans to be prepared so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.

4. A signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 7 July 2023 and updated on 22 November 2023 This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans (the Amended DA) that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent at Annexure A to this judgment.

6. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

1. Owners consent was provided with the development application.

2. The original DA was advertised and notified to adjoining and nearby landowners from 3 June 2020 until 1 July 2020. Five submissions were received which raised matters to do with view loss, bulk and scale, streetscape character, solar access, traffic generation and visual impact of the proposed DA. The objectors’ concerns were considered by the Council. These concerns have also been considered by the parties in the resolution of the proceedings.

Kogarah Local Environmental Plan 2012

1. Clause 2.3 of Kogarah Local Environmental Plan 2012 (KLEP) requires the consent authority to have regard to the objectives for development in the zone prior to determining the Development Application. The parties submit and I am satisfied, that the proposed development as amended is consistent with the objectives of the B4 Mixed Use zone, which are: 

•   To provide a mixture of compatible land uses.

•   To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

•   To encourage development that contributes to economic growth and employment opportunities.

•   To encourage development that contributes to an active, vibrant and sustainable town centre.

•   To provide opportunities for residential development, where appropriate.

2. The parties agree, and I am satisfied that the Amended DA is permissible with development consent in the B4 Mixed Use zone of the KLEP.

3. As required by cl 5.6 of KLEP, the parties submit and I concur that the architectural roof feature is satisfactory as it:

…

(i) comprises a decorative element on the uppermost portion of a building, and

(ii) is not an advertising structure, and

(iii) does not include floor space area and is not reasonably capable of modification to include floor space area, and

(iv) will cause minimal overshadowing, and

(b) any building identification signage or equipment for servicing the building (such as plant, lift motor rooms, fire stairs and the like) contained in or supported by the roof feature is fully integrated into the design of the roof feature.

4. The parties agree and I accept that the proposed development does not adversely impact on the criteria contained in cl 6.2 of KLEP relating to excavation and earthworks on the land.

5. The parties agree and I accept that the applicant has obtained the required approvals under cl 6.5 KLEP, relating to airspace operations.

Clause 4.3 Variation to Height Standard

1. The development does not comply with the Height of Building standard in cl 4.3 of KLEP. The Applicant has lodged a cl 4.6 request to vary the building height standard.

2. I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard as required by cl 4.6(3)(b) of the KLEP that may be summarised as follows:

1. Clause 4.3(2) of the KLEP prescribes a height of buildings development standard of 39m. The parties submit and I accept that the Amended DA has a maximum height of 42.5m, which breaches the height standard by 3.5m, which exceeds the standard by 8.9%. The Applicant has prepared a Written Request that seeks to justify the contravention of the development standard, in accordance with cl 4.6 of the KLEP.

2. As noted in the Written Request, the variations relate to the communal open space located at Level 12, including the fire stairs, lift overrun and canopy shading.

3. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

4. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

5. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 39m for the following reasons:

1. The proposed twelve storey development is generally consistent with the prevailing scale of development in the area.

2. The intensity of the development is compatible with the desired future character and the applicable zone objectives for the area.

3. The development has been designed to reflect the height and scale of new buildings located within the Kogarah Town Centre.

4. The orientation of the site means that the proposed development casts additional overshadowing primarily on Montgomery Street and to the south-western properties in the morning. By the afternoon, the shadows fall to Hogben Street and the properties to the south and south-east.

5. The degree of overshadowing cast is reflective of the uplift from single and two storey structures to twelve storeys.

6. The elements above the 39m building height have no notable impact on the solar access availability to those properties, as illustrated in the sun-eye diagrams.

7. The proposed form has been articulated to all elevations physically and in materials and finishes to mitigate the visual impact of the scale of the development.

8. No disruption of views or notable privacy impacts are created by the variation.

9. The proposal aligns with the objectives of the clause and the zone.

3. For the reasons given in [7(9)], I consider the proposed development to be consistent with the objectives of the relevant standard, and I am satisfied that the objectives of the B4 zone, set out at [7(3)], are also achieved.

4. Accordingly, I am satisfied that the proposed development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the KLEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.

5. For the reasons stated above, I find the Request to vary the height standard should be upheld.

Clause 4.4 Variation to Floor Space Ratio Standard

1. The development does not comply with the Floor Space Ratio standard in cl 4.4 of KLEP. The Applicant has lodged a cl 4.6 request to vary the floor space ratio standard.

2. I am satisfied that there are sufficient environmental planning grounds to justify the contravention of the floor space ratio standard as required by cl 4.6(3)(b) of the KLEP that may be summarised as follows:

1. Clause 4.3(2) of the KLEP prescribes a height of buildings development standard of 11.5m. The parties submit and I accept that the Amended DA has a maximum height of 11.7m, which breaches the height standard by 0.2m. The Applicant has prepared a Written Request that seeks to justify the contravention of the development standard, in accordance with cl 4.6 of the KLEP.

2. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

3. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

4. As required by cl 4.6 of the KLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard set out at cl 4.3.

5. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 39m for the following reasons:

1. The Amended DA proposes a maximum building height of 11.7m, exceeding the development standard by 0.2m or 1.7%. In addition, the proposal also results in a minor non-compliance of 11.53m to the solar panels of the southern built form.

2. The topography contributes to the extent of this variation. Specifically, the topography falls from the eastern boundary (Beans Farm Road) to the western (side) boundary, which exacerbates the extent of non-compliance. That is, the western edge of the southern built form is non-compliant with the 11.5m development standard, and it is where the topography falls towards the side boundary that the roof and solar panels vary the standard. It is only the western edge which is non-compliant with the development standard, with the remainder of the roof form and solar panels (of the southern built form) strictly complying.

3. Whilst the topographical variation increases the extent of non-compliance, it is considered acceptable as it pertains to minor roof elements and solar panels which do not contribute to any to any adverse increase of bulk and scale. The non-compliant elements are integrated into the high quality, cotemporary architectural form which limits any visual or physical impact.

4. The Amended DA otherwise complies with the height of building development standard when measured from the site’s natural ground level.

5. The Amended DA will remain consistent with the streetscape within its immediate context, including its relationship to recently approved development along Dumaresq Street.

6. The Amended DA will be consistent with the desired future character of the area.

7. The objectives of the KLEP Zone B4 Mixed Use land use zone are mentioned above at [7(3)]. I am satisfied the Amended DA meets these objectives.

8. The extent of the additional height creates no significant adverse overshadowing impacts to the adjoining low density residential dwellings or public domain when compared to a strictly compliant building envelope. That is, any additional overshadowing created by the non-compliance is onto the public domain or front setback of the residential dwelling (to the west) and will therefore have no adverse impact to amenity. As such, the increase to overshadowing caused by the non-compliant elements would be insignificant.

9. The height breach does not result in any additional privacy impacts as the non-compliant elements are limited to non-habitable roof forms and solar panels. As such, the loss of privacy caused by the non-compliant elements would be nil.

10. The height breach will not result in any significant view loss as the subject site does not contain any significant views across or from the public domain. The maximum height non-compliance is limited and any incidental view loss will be a result of a compliant building envelope and height. As such, the extent of view loss caused by the non-compliant element would be insignificant.

11. The objectives of cl 4.3 of the KLEP include to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, and to maintain satisfactory solar access to existing buildings and public areas. I am satisfied the Amended DA meets these objectives.

6. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the floor space ratio development standard, and I find to uphold the written request.

7. For the reasons given in [7(14)], I consider the proposed development to be consistent with the objectives of the relevant standard, and I am satisfied that the objectives of the B4 zone, set out at [7(3)], are also achieved.

8. Accordingly, I am satisfied that the proposed development is in the public interest pursuant to cl 4.6(4)(a)(ii) of the KLEP and raises no concern in respect of cl 4.6(5) that would preclude the grant of consent by the Court by reason of s 39(6) of the LEC Act.

9. For the reasons stated above, I find the Request to vary the floor space standard should be upheld.

Kogarah Development Control Plan 2013

1. The parties agree and I am satisfied that the relevant provisions of the Kogarah Development Control Plan 2013 (KDCP) have been considered in the assessment of the Amended DA and that the proposed development is acceptable with respect to those provisions, in that the Amended DA either meets or achieves the objectives of relevant controls, consistent with ss 4.15(1)(a)(iii) and 4.15(3A) of the EPA Act.

Public Interest

1. Council notified the DA from 3 June 2020 until 1 July 2020. Five submissions were received which raised matters to do with view loss, bulk and scale, streetscape character, solar access, traffic generation and visual impact of the proposed DA. These concerns were considered by the parties in the resolution of the proceedings and it was the Council’s view that the matters have been resolved by the amended plans.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) is relevant to the DA. Section 4.6 of the Resilience and Hazards SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application.

2. The parties agree and I accept that the Site has been used for residential purposes for extended periods of time, and such uses and/or development are not typically associated with activities that would result in the contamination of the Site. The proposed works do not result in any concerns with respect to contamination. There is no indication of previous uses that would cause contamination. In this regard there is no indication that the land is contaminated.

3. Further, the proposed works do not include any change to the use of the land that would result in any concerns with respect to contamination.

4. The parties submit and I agree that the applicable provisions of the Resilience and Hazards SEPP have been considered and addressed.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The DA relates to land mapped within the Georges River Catchment. Accordingly, the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) apply.

2. Having regard to the proposed stormwater plans and proposed conditions of consent, the parties submit and I am satisfied that the proposed development has taken into account the relevant General Provisions and the Specific Planning Principles in the Biodiversity and Conservation SEPP.

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

1. An amended BASIX Certificate dated 29 May 2023 has been submitted confirming the proposed development will meet the NSW Government’s requirements for sustainability.

2. I am therefore satisfied that the proposed development, as amended, meets BASIX requirements.

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

1. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the land.

2. An amended Design Verification Statement was provided on 29 May 2023 that assesses the proposed development against the relevant design principles set out in SEPP 65, as well as the objectives and design criteria set out in the Apartment Design Guide (ADG). The parties submit and I accept that the proposed development as amended adequately meets the relevant requirements of both SEPP 65 and the ADG.

Conclusion

8. 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.

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

Notes

10. The Court notes that:

1. Georges River Council, as the relevant consent authority, has agreed, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application in accordance with the following amended plans and documents:

Plan	Description	Revision	Date
000	Schedule of Drawings	N.4	26/05/2023
002	Material Selection	N	05/05/2023
101	Basement 5	N.3	09/05/2023
102	Basement 4	N.3	09/05/2023
103	Basement 3	N.3	09/05/2023
104	Basement 2	N.3	09/05/2023
105	Basement 1	N.4	26/05/2023
106	Ground Floor	N.4	26/05/2023
107	Level 1	N.1	26/05/2023
108	Level 2	N.1	26/05/2023
109	Level 3	N.1	26/05/2023
110	Level 4	N.1	26/05/2023
111	Level 5	N.1	26/05/2023
112	Level 6	N.1	26/05/2023
113	Typical Level 7-9	N.1	26/05/2023
116	Level 10	N.1	26/05/2023
117	Level 11	N.1	26/05/2023
118	Level 12	N	05/05/2023
119	Roof Top	N	05/05/2023
120	Cross Ventilation Level 1	N.1	26/05/2023
121	Cross Ventilation Level 2	N.1	26/05/2023
122	Cross Ventilation Level 3	N.1	26/05/2023
123	Cross Ventilation Level 4	N.1	26/05/2023
124	Cross Ventilation Level 5	N.1	26/05/2023
125	Cross Ventilation Level 6	N.1	26/05/2023
126	Cross Ventilation Level 7-9	N.1	26/05/2023
127	Cross Ventilation Level 10	N.1	26/05/2023
128	Cross Ventilation Level 11	N.1	26/05/2023
201	Driveway Plan and Section	N	05/05/2023
202	HEIGHT BLANKET PERSPECTIVE	N	05/05/2023
301	AREA PLANS GF - LVL 5	N	05/05/2023
302	AREA PLANS LVL 6 - LVL 12	N	05/05/2023
401	MOORFIELD LANE ELEVATION	N	05/05/2023
402	HOGBEN STREET ELEVATION	N	05/05/2023
403	ELEVATION FROM 13-19 HOGBEN Street	N	05/05/2023
404	KENSINGTON ST ELEVATION	N	05/05/2023
405	MONTGOMERY ST ELEVATION	N	05/05/2023
501	LONGITUDINAL SECTION	N	05/05/2023
502	CROSS SECTION	N	05/05/2023
503	FIRE STAIR SECTION	N	05/05/2023
504	CROSS SECTION	N	05/05/2023
505	DETAIL SECTIONS	N	05/05/2023
602	PERSPECTIVES	N	05/05/2023
701	SHADOW ANALYSIS	N	05/05/2023
702	SHADOW ANALYSIS	N	05/05/2023
703	SHADOW ANALYSIS	N	05/05/2023
704	SHADOW ANALYSIS	N	05/05/2023
705	SUN VIEWS	N	05/05/2023
706	SUN VIEWS	N	05/05/2023
707	SUN VIEWS	N	05/05/2023
708	SUN PATH PERSPECTIVE	N	05/05/2023
709	Sun Path Perspective	N	05/05/2023
710	Sun Path Perspective	N	05/05/2023
Landscape Plan prepared by CLMA
L00	Landscape Plan	A	26/05/2023
L01	Landscape Plan – Ground Floor	A	26/05/2023
L02	Landscape Plan– Level 11	A	26/05/2023
L03	Landscape Plan– Level 12	A	26/05/2023
L04	Planting Schedule	A	26/05/2023
L05	Landscape Plan Planting Details – Sheet 1	A	26/05/2023
L07	Landscape Plan Planting Details – Sheet 1	A	26/05/2023
L07	Landscape Maintenance & Specification Notes	A	26/05/2023
Stormwater Plans prepared by John Romanous & Associates
2057-S1/7	Basement 5 Drainage Plan	F	05/05/2023
2057-S2/7	Basement 5 Drainage Plan	F	05/05/2023
2057-S3/7	Basement 5 Drainage Plan	F	05/05/2023
2057-S4/7	Basement 5 Drainage Plan	F	05/05/2023
2057-S5/7	Basement 5 Drainage Plan	F	05/05/2023
2057-S6/7	Basement 5 Drainage Plan	F	05/05/2023
2057-7/7	Details	F	05/05/2023
Draft Plan of Stratum Subdivision prepared by Timothy A.J Michael
2309	Sheets 1-5 (Rev rec 03/06/2023)	2	12/05/2023
Plan of Stratum Subdivision	12/05/2023
Clause 4.6 Request to Vary Building Height	May 2023
Clause 4.6 Request to vary Floor Space Ratio	June 2023
SEPP 65 Report	29/05/2023
Basix certificate	29/05/2023
Waste Management Plan	6	29/05/2023
Preliminary Site Investigation	31/05/2023
Geotechnical Investigation report	3	27/05/2023
Cross Ventilation Design	14/05/2023
2057/R1	Gutter Flow Analysis	13/06/2023
2057-CW/2	Driveway Long Section (2 Sheets)	13/06/2023

Orders

11. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The Applicant’s written request prepared by GAT & Associates Pty Ltd dated May 2023 pursuant to clause 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) to vary the building height development standard in clause 4.3 of the KLEP is upheld.

3. The Applicant’s written request prepared by GAT & Associates Pty Ltd dated June 2023 pursuant to clause 4.6 of the KLEP to vary the floor space ratio development standard in clause 4.4 of the KLEP is upheld.

4. The appeal is upheld.

5. Development consent is granted to Development Application No DA2020/0190 for demolition of existing structures and construction of a 12 storey mixed use development, 3 retail tenancies, 5 levels of basement and stratum subdivision at 21 Hogben Street, Kogarah, in the terms set out in Annexure A.

L Sheridan

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 27 November 2023