Riverwood Development Company Pty Limited v Georges River Council

[2019] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:	Riverwood Development Company Pty Limited v Georges River Council [2019] NSWLEC 1193
Hearing dates:	Conciliation conference on 26 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2017 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Riverwood Development Company Pty Limited (Applicant) Georges River Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Ernst and Young (Applicant) J Hewitt, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/244694
Publication restriction:	No

Judgment

1. COMMISSIONER: Riverwood Development Company Pty Ltd (the Applicant) has appealed the refusal of the Georges River Local Planning Panel (the Respondent) of its development application (No. 2016/0219) for a part 5 storey, part 8 storey shop top housing development (the proposed development) at 279-281 Belmore Road, Riverwood (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. 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 26 April 2019, and I presided over the conciliation conference.

5. 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 involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

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 the function under s 4.16 of the EP&A Act to grant consent to the modification application.

7. 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 to be:

1. the provisions of cl 2.2 concerning the zoning of land, and the permissible uses of land zoned B2 Local Centre, in relation to which the Applicant’s amended development application, including accompanying plans, were consistent with the definition of shop top housing in Hurstville Local Environmental Plan 2012 (HLEP) and so is a permissible land use within the zone;

2. the provisions of cl 4.3 of the HLEP concerning the height of buildings and which provides that a maximum height development standard of 21m is applicable to the Subject Site (a), and in relation to which the Parties agreed that the Applicant’s written request, prepared under the provisions of cl 4.6 of HLEP, to vary that standard was well founded;

3. the provisions of cl 28(2) of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65), and in relation to which the Respondent was satisfied that the Applicant’s development application, to which SEPP65 applies, had taken into consideration:

(a) the advice (if any) obtained from the design review panel, and

(b) the design quality of the development when evaluated in accordance with the design quality principles, and

(c) the Apartment Design Guide.

4. the provisions of cl 87 of State Environmental Planning Policy (Infrastructure) 2017 (SEPP Infrastructure) concerning potential acoustic impacts, and in relation to which the Applicant had prepared a detailed acoustic impact study that confirmed compliance of the amended development application with the provisions of cl 87 of SEPP Infrastructure;

5. the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP55), in relation to which the Applicant had provided a Preliminary Site Investigation report, prepared by an appropriately qualified individual, which confirmed the suitability of the Subject Site for the purposes of the proposed development;

6. the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), and in relation to which the Applicant had provided a BASIX Certificate attesting to the compliance of the proposed development, as amended, with the provision of the BASIX SEPP.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.15 of the EP&A Act have been so satisfied.

9. I am further 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, for reasons provided at [7] and [8].

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 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 to rely upon the plans referred to in Condition 1 of Annexure "A" to this agreement and the amended clause 4.6 exception which is Annexure "B" to this agreement.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) the Applicant is to pay the Respondent's costs in the amount of $20,000 (GST inclusive) within 14 days of the date of this order.

3. The Applicant's written request by SJB Planning dated 25 March 2019, pursuant to cl 4.6 of the Hurstville Local Environmental Plan 2012 (HLEP) to vary the Height of Buildings development standard set out in clause 4.3 of the HLEP has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of the HLEP. Consequently, the Applicant's written request is well founded and upheld.

4. The Appeal is upheld.

5. Development Application 2016/0219 for demolition of existing buildings and ancillary structures, and construction of a part 5, part 8 storey shop top housing development containing 349.7 sqm of retail space and 33 residential units and basement car parking for 52 Vehicles and construction of pedestrian walkway on Lots 8 and 9 DP 234023 and Lot 10 in DP 1208235 and known as 279 and 281 Belmore Road Riverwood is approved subject to the conditions set out in Annexure "A" to this agreement.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A

Annexure B

Decision last updated: 30 April 2019