Nelson Architecture Pty Ltd v Georges River Council

[2018] NSWLEC 1614

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nelson Architecture Pty Ltd v Georges River Council [2018] NSWLEC 1614
Hearing dates:	Conciliation conference on 8 November 2018
Date of orders:	29 November 2018
Decision date:	29 November 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Nelson Architecture Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: C Gough, Storey & Gough (Applicant) A Berry, Georges River Council (Respondent)
File Number(s):	2018/121980
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Georges River Council of Development Application No. DA 2017/0571. The application based on amended plans seeks the demolition of existing structures and construction of a new house, driveway and parking areas at Lot 2 DP 540632, also known as 22 Vaudan Street, Kogarah Bay.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979.

3. The Court arranged a conciliation conference under s 34AA(1)(a)(i) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 8 November 2018. I have presided over the conciliation conference. There were no objections raised by third parties at the conciliation.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 2017/0571 with conditions.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1)(a) of the EPA Act 1979 to grant consent to the development application with conditions. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistent with cll 4.6, 6.3 and 6.4 of the Kogarah Local Environmental Plan 2012 (KLEP 2012).

6. The development results in no adverse amenity impacts internally or to the neighbours based on compliance with setbacks and building design that has reduced balcony sizes, with reduced glazing.

7. In resolution of the flood planning issues, the development is elevated, located above the foreshore building line and mean high water mark, pursuant to cll 6.3 and 6.4(2) of the KLEP 2012.

8. The parties explained that the development based on amended plans is not compliant with height requirements as set out in cl 4.3 of the KLEP 2012, although satisfies a (cl 4.6) written request for variation of height, dated September 2018 and prepared by Rockeman Town Planning. Consideration of a variation of the height requirement for this development is permitted pursuant to cl 4.6(2) of the KLEP 2012. In reviewing the applicant’s (cl 4.6) written request for variation to the height requirement, I find that the requirements of cl 4.6(3) are adequately addressed and contravention of the standard is satisfied. The requirement to raise the height of the building to alleviate flood risk results in no adverse amenity impacts and is minimal (0.55 m equivalent to 6.1% variation), and therefore compliance is both unreasonable and unnecessary. The written request for variation submitted pursuant to cl 4.6(4) of the KLEP 2012 establishes other preconditions that must be satisfied before a consent authority can exercise the power to grant development consent. The Court is satisfied that the cl 4.6 written request addresses the requirements of cl 4.6(3) and that the proposed development is in the public interest as it achieves the objectives of the zone and height, as set out in the KLEP 2012.

9. I am therefore 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 1979.

10. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

11. The Court orders:

1. The Applicant is granted leave to amend the development application by substituting the following plans and documents as the plans and documents relied upon for the purpose of the development application, as set out under condition 1 of the conditions of consent annexed hereto and marked "A" and below:

1.0.1 Site Plan DA-03 Revision 15 dated 16/11/2018 by Nelson Architecture.

1.0.2 Ground Floor Plan DA-04 Revision 14 dated 27/09/2018 by Nelson Architecture.

1.0.3 First Floor Plan DA-05 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.4 Second Floor Plan DA-06 Revision 15 dated 09/11/2018 by Nelson Architecture

1.0.5 Roof Plan DA-07 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.6 Site Management Plan DA-08 Revision 13 dated 13/08/2018 by Nelson Architecture

1.0.7 Sections Plan DA-09 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.8 Elevations Plan DA-10 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.9 3D renderings/photomontages by 3D Architectural Imaging

1.0.10 Shadow Diagram Plan DA-11 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.11 Shadow Diagram Plan DA-12 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.12 Shadow Diagram Plan DA-13 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.13 Shadow Diagram Plan DA-19 Revision 13 dated 13/08/2018 by Nelson Architecture.

1.0.14 Shadow Diagram Plan DA-20 Revision 13 dated 13/08/2018 by Nelson Architecture.

1.0.15 Shadow Diagram Plan DA-21 Revision 13 dated 13/08/2018 by Nelson Architecture.

1.0.16 Shadow Diagram Plan DA-22 Revision 13 dated 13/08/2018 by Nelson Architecture.

1.0.17 Shadow Diagram Plan DA-43 Revision 13 dated 10/10/2018 by Nelson Architecture.

1.0.18 Shadow Diagram Plan DA-44 Revision 13 dated 10/10/2018 by Nelson Architecture.

1.0.19 Shadow Diagram Plan DA-45 Revision 13 dated 10/10/2018 by Nelson Architecture.

1.0.20 Shadow Diagram Plan DA-46 Revision 13 dated 10/10/2018 by Nelson Architecture.

1.0.21 Area Calculation Plan DA-27 Revision 15 dated 09/11/2018 by Nelson Architecture.

1.0.22 Colour and Materials Schedule

1.0.23 Stormwater Drainage Plan C-3227-01 Issue 3 dated 19/10/2018 by Pavel Kozarovski.

1.0.24 Landscape Specification dated 4/10/2018 by Isthmus Pty Limited.

1.0.25 Landscape Plan ISO23/DA Issue B dated 23 October 2018 by Isthmus Pty Limited.

1.0.26 Arboricultural Impact Assessment dated 20/10/2018 by The Ents Tree Consultancy.

1.0.27 BASIX Certificate 840907S_05 dated 14 November 2018.

1.0.28 Amended Statement of Environmental Effects dated September 2018 by Rockeman Town Planning

1.0.29 Amended Section 4.6 Request to vary a Development Standard dated September 2018 by Rockeman Town Planning.

2. The appeal is upheld.

3. Development Application No. 2017/0571 as amended, for the demolition of the existing house, driveways and parking area and construction of a new house, driveway and parking areas at 22 Vaudan Street, Kogarah Bay is approved subject to the conditions set out in Annexure "A" hereto.

4. No costs order is made.

……………………..

S Bish

Commissioner of the Court

Annexure A (C)

Plans

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Decision last updated: 29 November 2018