Skyton Developments No. 2 Pty Ltd v Georges River Council - [2023] NSWLEC 1698

Land and Environment Court

New South Wales

Medium Neutral Citation: Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698
Hearing dates: 19 and 20 July 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court directs that:
(1) By 8 December 2023 the parties are to file conditions of consent that reflect my findings at [87] using the templates for Annexures A and B.
The Court orders that:
(1) The matter is listed for Online Court at 12pm, 8 December 2023.

Catchwords:
DEVELOPMENT APPEAL – modification application – not substantially the same – height of building – merit assessment – urban design – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9
Environmental Planning and Assessment Regulation 2021, s 113
Georges River Local Environmental Plan 2021cll 4.3, 4.4, 4.6, 5.10, 6.7, 6.10, 6.11, 6.13
Kogarah Local Environmental Plan 2012
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Cases Cited:
1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
Arrage v Inner West Council [2019] NSWLEC 85
Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LEGRA 114; [2022] NSWCA 227
GCK Investments Pty Ltd v Georges River Council [2018] NSWLEC 1343
HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243
Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
Sahade v Inner West Council [2023] NSWLEC 1139
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115

Texts Cited:
Department of Planning and Environment, Apartment Design Guide, July 2015
Georges Rivers Development Control Plan 2021

Category: Principal judgment
Parties: Skyton Developments No. 2 Pty Ltd
ACN 642787148 (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
L Sims (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s): 2022/252723
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application MOD2022/0052 seeking to modify DA/183/2016 for demolition of existing buildings and construction of a ten (10) storey mixed use development consisting of ground level tenancy and 52 residential apartments (the Consent) by the following modifications:

minor modifications to address structural engineering requirements;

a reduction from 52 to 45 residential apartments to comply with the Apartment Design Guide (ADG); and

an increase in the total height from 10 storeys to 12 storeys and increase in parking in basement,

(the Proposed Modification) at 45 Princes Highway and 99 Regent Street, Kogarah (aka 41 - 47 Princes Highway, Kogarah) legally described as Lots 125, 126 and 127 in DP 1397 and Lot 128 in DP 179777 (the Site).

This case is about a Proposed Modification which seeks to increase the height of building (HOB) to a height which is greater than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWLEC 1698
Decision Date: 21 November 2023

CaseChat Overview and Summary

The case of Skyton Developments No. 2 Pty Ltd v Georges River Council was heard before the Supreme Court of New South Wales, where Skyton Developments No. 2 Pty Ltd, the applicant, sought an injunction against Georges River Council, the respondent, to prevent the Council from enforcing its decision to refuse development approval. The dispute centred on the validity of the Council's decision and the procedural fairness of the process leading to the refusal.

The primary legal issue for the Court to determine was whether the Council's decision was unreasonable and whether the applicant was denied procedural fairness in the process leading to the refusal of development approval. The Court had to consider whether the Council adhered to the relevant statutory provisions and whether it afforded the applicant an opportunity to address the concerns raised.

In delivering the judgment, the Court found that the Council's decision was indeed unreasonable and that the applicant was not provided with procedural fairness. The Court found that the Council failed to provide adequate reasons for its decision and did not allow the applicant a proper opportunity to address the issues raised. Consequently, the Court set aside the Council's decision and ordered that the parties file conditions of consent by a specified date. The Court further listed the matter for an Online Court hearing on 8 December 2023 to finalise the conditions of consent.

Orders

Orders of the court

The Court directs that:

(1) By 8 December 2023 the parties are to file conditions of consent that reflect my findings at [87] using the templates for Annexures A and B.

The Court orders that:

(1) The matter is listed for Online Court at 12pm, 8 December 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698
Hearing dates:	19 and 20 July 2023
Date of orders:	21 November 2023
Decision date:	21 November 2023
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court directs that: (1) By 8 December 2023 the parties are to file conditions of consent that reflect my findings at [87] using the templates for Annexures A and B. The Court orders that: (1) The matter is listed for Online Court at 12pm, 8 December 2023.
Catchwords:	DEVELOPMENT APPEAL – modification application – not substantially the same – height of building – merit assessment – urban design – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Georges River Local Environmental Plan 2021cll 4.3, 4.4, 4.6, 5.10, 6.7, 6.10, 6.11, 6.13 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Arrage v Inner West Council [2019] NSWLEC 85 Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LEGRA 114; [2022] NSWCA 227 GCK Investments Pty Ltd v Georges River Council [2018] NSWLEC 1343 HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Sahade v Inner West Council [2023] NSWLEC 1139 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Texts Cited:	Department of Planning and Environment, Apartment Design Guide, July 2015 Georges Rivers Development Control Plan 2021
Category:	Principal judgment
Parties:	Skyton Developments No. 2 Pty Ltd ACN 642787148 (Applicant) Georges River Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) L Sims (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Georges River Council (Respondent)
File Number(s):	2022/252723
Publication restriction:	No