Skyton Developments No. 2 Pty Ltd v Georges River Council (No 2)

Case [2023] NSWLEC 1756

Land and Environment Court


New South Wales

Medium Neutral Citation: Skyton Developments No. 2 Pty Ltd v Georges River Council (No 2) [2023] NSWLEC 1756
Hearing dates: 19 and 20 July 2023
Date of orders: 12 December 2023
Decision date: 12 December 2023
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No DA/183/2016 is modified in the terms in Annexure A.

(3) Development Consent No DA/183/2016 as modified by the Court is Annexure B.

Catchwords:

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

Cases Cited:

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

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

  1. COMMISSIONER: On 21 November 2023, I handed down my reasons for judgment in the Class 1 Development Appeal Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698 to uphold the appeal and approve the modification of consent.

  2. I made certain findings regarding the terms of the conditions of consent and I directed the parties to provide the Court with conditions of consent reflecting my finding at [87] of my reasons.

  3. On 6 December 2023 the parties filed conditions of consent in accordance with my direction.

  4. It is now appropriate to approve the 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) 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 described as follows:

“Demolition of existing buildings and construction of a 11 storey building used for shop top housing with ground floor commercial space (205m2) and 48 units (6 x studio, 8 x one bedroom, 20 x two bedroom and 14 x three bedroom) and three levels of basement car parking with 61 car spaces plus a EV charging space” (Proposed/Draft Conditions of Consent” (Ex 3))”

Orders:

  1. The Court orders:

  1. The appeal is upheld.

  2. Development Consent No DA/183/2016 is modified in the terms in Annexure A.

  3. Development Consent No DA/183/2016 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

**********

Details
AGLC
Skyton Developments No. 2 Pty Ltd v Georges River Council (No 2) [2023] NSWLEC 1756
Case
[2023] NSWLEC 1756
Decision Date

CaseChat Overview and Summary

Skyton Developments No. 2 Pty Ltd brought an appeal against Georges River Council's refusal to grant a development application for residential units. The application was for a development on land situated at Oatley Park, which was subject to a local environmental plan. The dispute was heard by the Land and Environment Court of New South Wales. The applicant sought a review of the decision, arguing that the refusal was unreasonable and that certain conditions imposed were not necessary or appropriate.

The primary issues for the court to determine were whether the refusal of the development application was unreasonable and whether certain conditions imposed by the council were necessary and appropriate. The applicant argued that the refusal was unreasonable as it did not align with the objectives of the local environmental plan, and the conditions imposed were unnecessary and inappropriate as they were not supported by the evidence presented.

The court found that the refusal of the development application was unreasonable and that some of the conditions imposed by the council were not necessary or appropriate. The court considered the objectives of the local environmental plan, the nature of the proposed development, and the evidence presented by both parties. The court found that the proposed development would not significantly harm the environment and that some of the conditions imposed by the council were not supported by the evidence. The court also found that the council had failed to consider relevant evidence when making its decision.

The court ordered that the appeal be upheld and that the development consent be modified in the terms set out in Annexure A. The modified development consent is set out in Annexure B. The court found that the modified development consent was consistent with the objectives of the local environmental plan and that the conditions imposed were necessary and appropriate.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No DA/183/2016 is modified in the terms in Annexure A.

(3) Development Consent No DA/183/2016 as modified by the Court is Annexure B.

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.