Touma Carlton Pty Ltd v Georges River Council

[2020] NSWLEC 1408

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Touma Carlton Pty Ltd v Georges River Council [2020] NSWLEC 1408

Hearing dates:

Conciliation conference on 1 September 2020

Date of orders:

4 September 2020

Decision date:

04 September 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A.

(2) The clause 4.6 objection on the 1.7m variation of the height limit under clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld.

(3) The appeal is upheld.

(4) Development Application DA 2019/0116 for demolition of existing structures and construction of a six (6) storey mixed used development with eight (8) commercial tenancies and thirty seven (37) residential units over two (2) levels of basement car parking on the land legally described as Lot 202 in DP746731 known as 253-255 Princes Highway, Carlton, NSW is approved subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

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 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

New South Wales of Department and Planning, Apartment Design Guide (2015)

Category:

Principal judgment

Parties:

Touma Carlton Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
C McEwen SC (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2019/150524

Publication restriction:

No

Judgment

1. COMMISSIONER: Touma Carlton Pty Limited (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of its DA 2019/0116 for demolition of existing structures and construction of a six (6) storey mixed used development with eight (8) commercial tenancies and thirty seven (37) residential units over two (2) levels of basement car parking (the Proposed Development) on the land legally described as Lot 202 in DP746731 known as 253-255 Princes Highway, Carlton, NSW (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 had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 1 September 2020, and I presided over that 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.

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 Proposed Development is for the purpose of a mixed used development, which is a permissible use in the B6 Enterprise Corridor Zone, pursuant to cl 2.3 of Kogarah Local Environmental Plan 2012 (KLEP);

2. the Applicant’s written request pursuant to cl 4.6(3) of KLEP adequately addresses the matters required to be demonstrated in respect of the 1.7m height non-compliance of the Proposed Development, in particular:

1. that compliance with the height of buildings development standard in cl 4.3 of KLEP is unreasonable or unnecessary in the circumstances of the case because the objectives of the standard are achieved notwithstanding the non-compliance;

2. there are sufficient environmental planning grounds to justify contravening the standard, including that the Subject Site is subject to flooding which required an increase in the base height for the floor levels in the building, and which has contributed to the lift overrun exceeding the standard, and which has assisted the Proposed Development to achieve the objects of the EP&A Act;

3. the Proposed Development is consistent with objectives of the B6 zoning of the Subject Site;

4. The Proposed Development will be in the public interest for reasons provided above at (b) and (c).

3. the development (as amended) satisfies the requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and associated Apartment Design Guide, and an accompanying verification statement and documentation provided in satisfaction of that instrument and requirements under the Environmental Planning and Assessment Regulation 2000 (the Regulation) has been agreed to by Council;

4. the amended plans are accompanied by a BASIX Certificate (no. 103689M_02) in accordance with the requirements of Schedule 1 of the Regulation;

5. the development (as amended) complies with cl 4.4 of KLEP, which establishes the floor space ratio applicable to the Subject Site;

6. the development (as amended) complies with cl 6.2 (Earthworks) in the KLEP following consideration of the matters set out in cl 6.2(3);

7. the development (as amended) complies with cl 6.3 of the KLEP in relation to flood planning; and

8. consideration has been given as to whether the subject land is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), and suitable conditions of consent have been proposed in relation to the implementation of a remedial action plan for the Subject Site to ensure that the Subject Site is suitable for the purpose of carrying out the Proposed Development as required under clause 7(1) of SEPP55.

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 4.16 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.

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 that:

1. The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A.

2. The clause 4.6 objection on the 1.7m variation of the height limit under clause 4.3 of the Kogarah Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Application DA 2019/0116 for demolition of existing structures and construction of a six (6) storey mixed used development with eight (8) commercial tenancies and thirty seven (37) residential units over two (2) levels of basement car parking on the land legally described as Lot 202 in DP746731 known as 253-255 Princes Highway, Carlton, NSW is approved subject to the conditions set out in Annexure A.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (415748, pdf)

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Amendments

10 February 2021 - Deletion of the word "Draft" on Page 1 of Annexure A.