Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council
[2019] NSWLEC 1563
•20 November 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council [2019] NSWLEC 1563 Hearing dates: Conciliation conference on 12 November 2019 Date of orders: 20 November 2019 Decision date: 20 November 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders:
(1) The Applicant is granted leave to rely on the amended plans and drawings attached at Annexure A and referred to in the consolidated modified conditions of development consent set out in Annexure C.
(2) The appeal is upheld.
(3) The modification application lodged directly with the Court on 24 September 2019 to modify development consent No. DA111/2017, which the Court granted by way of orders made on 24 July 2018, for the demolition of existing buildings, amalgamation of lots and construction of a residential flat building at 70-78 Regent Street, Kogarah is determined by approving the modifications as set out in Annexure B.
(4) As a consequence of (3) above, Development Consent No. DA111/2017 is now subject to the consolidated, modified conditions of development consent set out in Annexure C.Catchwords: MODIFICATION APPLICATION – residential flat building – 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
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 65—Design Quality of Residential Apartment DevelopmentCases Cited: Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council [2018] NSWLEC 1370 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Regent Land Pty Ltd ATF Regent Land Unit Trust (Applicant)
Georges River Council (Respondent)Representation: Counsel:
Solicitors:
B Salon (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)
Mills Oakley (Applicant)
Georges River Council (Respondent)
File Number(s): 2019/298489 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal by Regent Land Pty Ltd ATF Regent Land Unit Trust (the Applicant) lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). It is against the deemed refusal by Georges River Council (the Council) of a modification application, DA2019/0180, for the modification of consent to development application 111/2017 (the modification application) pursuant to s 4.55(8) of the EP&A Act.
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The modification application proposed alterations to an approved residential flat building (RFB) located at 70-78 Regent Street, Kogarah (the site).
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The RFB was granted consent by the Land and Environment Court on 24 July 2018: Regent Land Pty Ltd ATF Regent Land Unit Trust v Georges River Council [2018] NSWLEC 1370.
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The consent authorises the construction of an 11 storey RFB containing 104 apartments over basement parking containing 123 car parking spaces. The development exceeded the height limit permissible under the Kogarah Local Environmental Plan 2012 (the LEP) but had been supported by the upholding of a cl 4.6 written request, as is required by the LEP.
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The modification application the subject of the appeal proposed to increase the number of apartments to 113, increase the amount of parking provided to 138 spaces, and reconfigure the basement and ground floor levels including relocating the driveway with associated changes to waste storage and service areas. Other more minor modifications were also proposed.
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The Council did not oppose the modifications subject to agreed revised conditions of consent which, inter alia, relate to tree removal and the extent of contributions payable given the change in the number of apartments.
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The Court arranged a conciliation conference under s 34 of the LEC Act. I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.
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As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act and therefore I am required under s 34(3)(a) to dispose of the proceedings in accordance with the parties’ decision.
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In making the orders, I am not required to make a merit assessment of the modifications proposed. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.
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The Council advised that the modified development would meet the design requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide.
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In this regard, all proposed apartments have the required minimum sized areas and balconies and the required storage. Deep soil areas, communal open space and parking are all proposed in excess of the minimum required. There is no change to the approved separation between buildings and the required minimum percentage of apartments achieve the required minimum amount of solar access and cross ventilation.
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A Design Verification Statement has been provided by the Applicant’s architect for the modified design as is required under SEPP 65.
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The Court has the power to modify the Court consent under s 4.55(8) of the EP&A Act and the relevant matters at s 4.15(1) of the EP&A Act as are of relevance have been considered.
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In this regard, the zone objectives of the LEP remain met, and consent has already been granted to the LEP height breach under the existing consent with no changes to the height proposed. Whilst there is an increase in the amount of floor space, the amended floor space ratio (FSR) of 0.39:1 still complies with the FSR permissible under the LEP of 4:1.
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I am also satisfied that the modification application would result in a development that is substantially the same as the development for which consent was originally granted and before that consent was subsequently modified (if at all) as is required under s 4.56(1)(a) of the EP&A Act.
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Further, that the modification application was notified as required by s 4.56(1)(b) and (c) but no objections were received.
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The Applicant has provided an updated BASIX certificate as is required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the conditions of consent require compliance with this updated certificate.
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Accordingly, the Court orders that:
The Applicant is granted leave to rely on the amended plans and drawings attached at Annexure A and referred to in the consolidated modified conditions of development consent set out in Annexure C.
The appeal is upheld.
The modification application lodged directly with the Court on 24 September 2019 to modify development consent No. DA111/2017, which the Court granted by way of orders made on 24 July 2018, for the demolition of existing buildings, amalgamation of lots and construction of a residential flat building at 70-78 Regent Street, Kogarah is determined by approving the modifications as set out in Annexure B.
As a consequence of (3) above, Development Consent No. DA111/2017 is now subject to the consolidated, modified conditions of development consent set out in Annexure C.
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Jenny Smithson
Commissioner of the Court
Annexure A (1.38 MB, pdf)
Annexure B (88.9 KB, pdf)
Annexure C (213 KB, pdf)
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Decision last updated: 20 November 2019
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