Stellar Hurstville Pty Ltd v Georges River Council

[2019] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stellar Hurstville Pty Ltd v Georges River Council [2019] NSWLEC 1143
Hearing dates:	Conciliation conference on 12 and 13 February 2019Final agreement filed 3 April 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [27] below
Catchwords:	DEVELOPMENT APPLICATION: mixed use development; conciliation conference; agreement between the parties; orders
Legislation Cited:	Airports Act 1996 Airports (Protection of Airspace) Regulations 1996 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 (Infrastructure) 2007 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Stellar Hurstville Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: S Duggan, SC (Applicant) M Staunton (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/370324
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Stellar Hurstville Pty Ltd (the Applicant) lodged under then s 97(1) now s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Georges River Council (the Council) of Development Application DA2016/0262 (the application).

2. The application as lodged sought consent under the EPA Act for the demolition of all existing buildings and ancillary structures and construction of a 13 storey mixed use development comprising 112 residential apartments over 2 commercial tenancies and basement parking at Lot 101 DP 773278 and SP 33174, known as 2-10 Woniora Road, Hurstville (the site).

3. The application was referred to Sydney Trains (on behalf of Railcorp), pursuant to cll 85-87 of State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP) as the development adjoins the railway and also proposed to impact on trees in the adjoining railway reserve. Concurrence to the development including removal of trees was provided by Sydney Trains, and conditions imposed to meet the noise requirements at subcl 87(3) of the Infrastructure SEPP. The requirements under cll 85 and 86 of the SEPP were also met with the conditions sought by Sydney Trains incorporated as conditions of consent.

4. The application was also referred to Sydney Airport, pursuant to the Airports Act 1996 and Airports (Protection of Airspace) Regulations 1996 given the proposed height of the development. Sydney Airport provided concurrence to the development subject to conditions including a maximum height of 102m, being the height proposed in the application as lodged.

5. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, contentions raised by the Council regarding the application included the bulk and scale of the building, non-compliance with the height control at cl 4.3, and the floor space ratio (FSR) control at cl 4.4, of the Kogarah Local Environmental Plan 2012 (the LEP), impacts on the nearby O’Brien’s Estate Heritage Conservation Area (HCA) and neighbours, as well as various amenity, landscaping and communal open space considerations. Concern was also raised with the proposed subdivision and public access, as well as with access to the basement.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation.

7. Arising from the conciliation, the development was amended to comprise basement parking and storage, two ground floor commercial units and 12 residential levels above containing 106 apartments. Amendments also had regard to the impacts on the HCA and neighbours. As a result of the amendments, an agreement was reached between the parties and filed with the Court under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I was required under s34(3) to be satisfied that the decision sought by the parties was one that the Court could make in the proper exercise of its functions.

9. In reviewing the proposed consent, I raised concerns with a number of the proposed conditions. These included conditions which could have been construed as authorising works to a blast wall on an adjoining parcel of land, this work being required to provide an appropriate sight distance for drivers of vehicles emerging from the driveway of the development.

10. Concern was also raised at granting approval to a development height which exceeded the agreed height supported by Sydney Airport as reflected in proposed operational conditions of consent. I was subsequently satisfied that, although the conditions of consent are poorly worded and raise apparent contradictions in terms of the approved height, they are lawful in that Sydney Airport’s approval is required to exceed their approved height.

11. The parties provided submissions in terms of the blast wall works which stated that nothing in the consent requires or authorises the person with the benefit of the consent to carry out the blast wall works. To the contrary, the consent is conditioned only to require the provision of evidence that the necessary approvals have been obtained and the works have been completed. Therefore, as none of the documents that comprise the development application propose that any work be carried out on the neighbouring land, the consent of the landowner of that neighbouring land on which the blast wall is located is not required to comprise part of the application.

12. In the original agreement filed, the orders sought included the Court being satisfied in terms of cl 102(3) of the Infrastructure SEPP. This clause applies to development adjoining roads with a certain volume of traffic. Given the Statement of Environmental Effects submitted with the application states that the traffic volumes on Woniora Road are such that cl 102 of the SEPP does not apply, the parties were requested to review this requested order and confirm that it did not apply with the Court only being required to be satisfied in terms of cl 87(3) of the SEPP. The parties confirmed that this was the case and a revised agreement was submitted.

13. Having been satisfied by the parties’ submissions and the revised agreement that the consent sought is in the form of a decision that the Court has the power to make, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

15. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

16. The site is zoned B4 under the LEP and the use is permissible with consent in that zone.

17. The development exceeds the maximum permissible height under the LEP of 39m under cl 4.3 having a proposed height of 40.835m to the top of a lift overrun. This is a 4.7% exceedence.

18. The development also exceeds the maximum FSR for the site of 4.5:1 under cl 4.4 of the LEP having a proposed FSR of 4.873:1. This is a 8.29% exceedence.

19. The Applicant submitted cl 4.6 written requests seeking to justify the height and FSR breaches. These were amended to reflect the amended development. The amended cl 4.6 requests were supported by the Council and submitted with the agreement.

20. I have reviewed and considered the cl 4.6 written requests accompanying the agreement and am satisfied, for the reasons outlined below, that they demonstrate that compliance with the maximum height and FSR required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contraventions sought. Further, that the development will be in the public interest because it is consistent with the objectives for development in the B4 zone in which the site is situated for the reasons outlined in the submitted cl 4.6 requests.

21. Further, the concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the written cl 4.6 requests.

22. The reasons contained in the cl 4.6 written request in support of the height variation sought, on which my finding of satisfaction on the proposed variation is based, can be summarised as follows:

1. The proposal meets the zone objectives of providing a mix of compatible uses which maximise public transport patronage, being extremely accessible to the train station and shopping centre, and in contributing to economic growth and employment opportunities. It also contributes to an active vibrant and sustainable Hurstville Town Centre providing an opportunity for local labour to reside in close proximity to work and to contribute to the vibrancy of the Town Centre.

2. The development is consistent with the objectives of the standard providing a similar footprint, height, shape and bulk and a better built form outcome than the adjoining development to the east at 12-20 Woniora Road having regard to the need to be compatible with the desired future character of the area. In this regard, both the height and the FSR were exceeded in the development at 12-20 Woniora Road. Therefore, the Council has already approved development in the streetscape that exceeds the height at a similar bulk and scale to that proposed.

3. In numerical terms the variation sought is minor. The proposal is predominantly compliant with the maximum height but for a small footprint, being a recessive lift and adjoining roof and a small portion of glass windshields. The lift overrun will not be visible from the street and any part of the building visible from the street exceeding 39m would be imperceptible.

4. The proposed height exceedences do not increase overshadowing, visual impact or loss of privacy in any noticeable way. Experts for the parties agreed that any reasonable development of the site would have similar overshadowing impacts. The elements above the height limit do not cast any additional shadows on neighbours – the shadows fall on the roof of the proposed building. The additional height also does not cause any loss of privacy given the separation distance across Woniora Road to dwellings opposite.

5. The key reason for the variation sought is to enable lift access to the rooftop communal open space area rather than relying on stair access. This improves the convenience to and likely increased use of this area by future residents, and therefore offers increased amenity for them.

23. The reasons contained in the cl 4.6 written request in support of the FSR variations sought, on which my finding of satisfaction on the proposed variation is based, can be summarised as follows:

1. As was the case for the height exceedence, the proposal meets the zone objectives of providing a mix of compatible uses which maximise public transport patronage, being extremely accessible to the train station and shopping centre, and in contributing to economic growth and employment opportunities. It also contributes to an active vibrant and sustainable Hurstville Town Centre providing an opportunity for local labour to reside in close proximity to work and to contribute to the vibrancy of the town centre.

2. The development is consistent with the objectives of the standard providing a similar footprint, height, shape and bulk and a better built form outcome than the adjoining development to the east at 12-20 Woniora Road having regard to the need to be compatible with the desired future character of the area. In this regard, both the height and the FSR were exceeded in the development at 12-20 Woniora Road. Therefore, the Council has already approved development in the streetscape that exceeds the FSR at a similar bulk and scale to that proposed.

3. The FSR is exceeded in part because of the requirement to enclose balconies facing the railway. Sydney Trains has sought this to limit the opportunity for items to be thrown from the balconies onto the railway line. Without this, these balconies would not have contributed to floor space. Enclosing the balconies does not add any material adverse impacts in terms of bulk. Removing the balcony enclosures would have implications for public safety. Enclosure will also assist with improved amenity outcomes for future residents given the noise from the railway.

4. There are no significant adverse impacts resulting from the FSR proposed.

5. The FSR could be reduced by deleting car parking spaces but this would be contrary to the intent of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) in terms of parking provided for residential units.

24. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP and raised in the SFC have been satisfied.

25. The development was amended to address concerns raised in terms of compliance with the design requirements of SEPP 65.

26. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

27. Accordingly, the Court orders that:

1. The Applicant is granted leave to rely on the amended plans, copies of which are referred to in condition 1 of Annexure "A", for the purpose of the development application.

2. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $40,000 within 28 days of the date of this agreement.

3. The Court is satisfied as to the matters specified in clause 87(3) of the State Environmental Planning Policy (Infrastructure) 2007.

4. The Applicant's written request under clause 4.6 of the Kogarah Local Environmental Plan 2012, prepared by Daintry Associates and dated 12 February 2019, for contravention of the maximum height development standard imposed by clause 4.3 of the Kogarah Local Environmental Plan 2012, is upheld.

5. The Applicant's written request under clause 4.6 of Kogarah Local Environmental Plan 2012, prepared by Daintry Associates and dated 12 February 2019, for contravention of the maximum floor space ratio development standard imposed by clause 4.4 of Kogarah Local Environmental Plan 2012, is upheld.

6. The appeal is upheld.

7. Development application 2016/0262 for the demolition of all existing buildings and ancillary structures, construction of a new mixed-use commercial-residential building comprising three basement levels containing car parking and storage, ground floor commercial (two commercial units) and split basement parking and storage level and 12 residential apartment levels (containing 106 apartments) is approved subject to the conditions in Annexure “A”.

………………………….

Jenny Smithson

Commissioner of the Court

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Annexure A

Decision last updated: 05 April 2019