Myliotis v Georges River Council

[2022] NSWLEC 1525

Land and Environment Court

New South Wales

Medium Neutral Citation:

Myliotis v Georges River Council [2022] NSWLEC 1525

Hearing dates:

Conciliation conference on 1 September 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA2017/0579 for the demolition of existing structures and construction of a dual occupancy development at 47 Boronia Street, Kyle Bay is modified in the terms in Annexure “A”.

(3) Development consent DA2017/0579 as modified by the Court is at Annexure “B”.

Catchwords:

MODIFICATION APPLICATION: modifications to an approved detached dual occupancy – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 115, 121B

Georges River Local Environmental Plan 2021, cl 1.8A

Kogarah Local Environmental Plan 2012

Land Environment Court Act 1979, ss 34, 34AA

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

Category:

Principal judgment

Parties:

Harry Myliotis (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/16300

Publication restriction:

No

Judgment

1. COMMISSIONER: In May 2019, consent was granted to Development Application No DA 2017/0579 for the demolition of existing structures and construction of a two-storey detached dual occupancy development with a swimming pool (original consent) at the corner of Boronia Street and Cross Street, Kyle Bay.

2. Consent was subsequently granted by the Court to modification application MOD2020/0131 to modify the original consent on 12 April 2021.

3. Construction of the development the subject of the modification application has commenced, and certain inconsistencies have been identified between the development for which consent has been granted, and the development being erected.

4. To remedy the inconsistencies, the Applicant in these proceedings lodged modification application MOD2021/0142 with Georges River Council (the Respondent) on 13 September 2021.

5. As the modification application remains undetermined, the Applicant now appeals the deemed refusal of the application under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land Environment Court Act 1979 (LEC Act) on 1 September 2022, which commenced with an onsite view after which the conciliation conference, at which I presided, continued on MS Teams.

7. I note here that, with consent of the parties, the owner of an adjoining property at No 45 Boronia Street, and their legal representative were permitted to join the conciliation conference.

8. Prior to the conciliation conference, the Applicant prepared amended plans and other documents that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention, subject to the provision of further detail that necessitated the further amending of plans and other documents, and for which I granted an adjournment.

9. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

10. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 6 September 2022.

11. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

12. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [28].

13. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

14. Firstly, as the appeal is made pursuant to s 4.55 of the EPA Act, as the presiding Commissioner, I must be satisfied that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act. In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.

15. With respect to s 4.55(2) of the EPA Act, I have formed this state of satisfaction given the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted.

16. In forming this opinion of satisfaction, I have considered the removal of a swimming pool in the vicinity of the northern boundary of the site adjacent to the fence shared with No 45 Boronia Street, and the lowering of the private open space also adjacent to the northern boundary when relative levels marked on the architectural and landscape plans are referred to.

17. I also accept that the part reduction in the setback from the northern boundary at level 1 of the proposal, at No 3A Cross Street, from that for which the consent was originally granted remains within the footprint of the concrete roof slab over and so does not extend beyond that envelope for which consent was originally granted.

18. I also note that, to the extent works are proposed to boundary walls which sit partly upon land at 45 Boronia Street, the owner of that land has requested such an approach, and has provided her written owner’s consent in accordance with the requirements of cl 115(1)(h) of the EPA Regulation.

19. Finally, I accept that the modification application maintains the proposed use, approved height, and general envelope of the proposed dual occupancy; the number of dwellings, number of bedrooms and the number of car spaces; and notwithstanding minor changes in the proposed gross floor area and basement footprint, the changes will not be apparent in the streetscape and amenity impacts upon neighbouring properties have been mitigated.

20. The site is located within the R2 Low Density Residential zone, according to the Kogarah Local Environmental Plan 2012 (KLEP), in which dual occupancy development is permitted with consent.

21. The objectives of the R2 zone are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

22. It is relevant to record here that, in October 2021, the KLEP was repealed and the Georges River Local Environmental Plan 2021 (GRLEP) commenced. However, the development the subject of this appeal is subject to the provisions of the KLEP as a result of the savings provisions at cl 1.8A of the GRLEP.

23. The GRLEP 2021 provides the following savings provisions:

1.8A Savings provisions relating to development applications

(1) “If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”

24. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. 876219M_06 dated 10 September 2022, prepared by Sustainability-Z Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

25. 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.

26. 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.

27. The Court notes that:

1. Georges River Council, as the relevant consent authority has agreed under clause 121B of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application in accordance with the following documentation:

1. Amended Architectural Plans prepared by Aardvarch Architecture as follows:

Plan No	Description	Rev	Date
A000	Cover Sheet / Location Plan	CC14	5.09.22
A001	Legends & Symbols	CC14	5.09.22
A005	Site Plan	CC14	5.09.22
A100	Floor Plan – Lower Ground Level	CC11	26.08.22
A101	Floor Plan – Ground Level	CC12	1.09.22
A102	Floor Plan – Level 01	CC12	1.09.22
A103	Roof Plan	CC11	26.08.22
A400	Building Elevation – North	CC12	1.09.22
A401	Building Elevation – West	CC12	1.09.22
A402	Building Elevation – East	CC14	5.09.22
A403	Building Elevation – South	CC11	26.08.22
A404	Boundary Elevation – North	CC12	1.09.22
A405	Building Elevation – 47 Boronia St, West	CC14	5.09.22
A406	Building Elevation – 3A Cross St, East	CC14	5.09.22
A500	Building Section AA	CC12	1.09.22
A501	Building Section BB	CC12	1.09.22
A502	Building Section CC	CC12	1.09.22
A503	Building Section DD	CC11	26.08.22
A600	Detail, Window & Door Schedule	CC14	5.09.22
A601	Boundary Wall Details	CC12	1.09.22

2. Amended Landscape Plans (Rev E) prepared by Zenith Landscape Designs dated 1.09.22 (3 sheets)

3. Amended Structural Drawings (Rev C) prepared by D&M Consulting dated 1.09.22 (4 sheets)

4. Amended Stormwater drawings (Rev O) prepared by NY Civil Engineering dated 2.09.22 (11 sheets)

2. The Applicant lodged the amended application on the NSW Planning Portal, evidence of which was provided to the Court on 9 September 2022.

3. The Applicant filed the amended application with the Court on 6 September 2022.

Orders

28. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA2017/0579 for the demolition of existing structures and construction of a dual occupancy development at 47 Boronia Street, Kyle Bay is modified in the terms in Annexure “A”.

3. Development consent DA2017/0579 as modified by the Court is at Annexure “B”.

……………………

T Horton

Commissioner of the Court

Annexure A (155699, pdf)

Annexure B (1175834, pdf)

**********

Decision last updated: 27 September 2022