WH Project Management Pty Ltd v Georges River Council

[2023] NSWLEC 1388

Land and Environment Court

New South Wales

Medium Neutral Citation:

WH Project Management Pty Ltd v Georges River Council [2023] NSWLEC 1388

Hearing dates:

Conciliation conference on 18 July 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent DA2017/0402 granted by the Land and Environment Court of NSW on 23 October 2020 is modified as set out in Annexure B to this judgment.

(3) The terms of the consolidated development consent DA2017/0402 as modified are set out in Annexure C to this judgment.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 50

Environmental Planning and Assessment Regulation 2021, s 113

Georges River Local Environmental Plan 2021

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development 2002, cll 29, 30

Cases Cited:

WH Project Management Pty Ltd v Georges River Council [2020] NSWLEC 1508

Texts Cited:

Georges River Community Engagement Plan 2017

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

WH Project Management Pty Limited (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
L Melvin (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/68786

Publication restriction:

Nil

Judgment

1. COMMISSIONER: WH Project Management Pty Ltd (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of its Modification Application No. MOD2023/0051, which seeks approval to modify a consent issued by the Court for demolition of existing structures and construction of a mixed use development containing one level of commercial/retail space, 11 levels of residential dwellings, and three levels of basement car parking (the Approved Development) at 1 Butler Road, Hurstville.(the Subject Site).

2. The appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction and is determined pursuant to the provisions of ss 4.55(1A) and 4.55(8) of the EP&A Act.

3. The Applicant’s application was notified between 6 and 24 April 2023 pursuant to the provisions of the Georges River Community Engagement Plan 2017, and no submissions were received in response to the notification.

4. On 18 July 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. No site view of the subject site was undertaken during the conciliation conference and no objectors had sought to make submissions in relation to the Proposed Development.

6. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of s 4.55(1A) of the EP&A Act, the Parties agree, and I am satisfied, that:

1. the proposed modification is of minimal environmental impact;

2. the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted;

3. the Respondent has notified the application as required under the provisions of the Georges River Community Engagement Plan 2017 and no submissions were received in response to that notification (see above at [3]); and

4. the Parties have confirmed, and I am satisfied, that consideration has been given to the relevant matters referred to in section 4.15(1) of the EP&A Act as well as the reasons given by the Court in WH Project Management Pty Ltd v Georges River Council [2020] NSWLEC 1508 for the grant of the consent that is sought to be modified, including in relation to the provisions of the:

1. Georges River Local Environmental Plan 2021; and

2. State Environmental Planning Policy (Resilience and Hazards) 2021, including those in s 4.6;

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) the Applicant has provided an updated BASIX Certificate No. 853750M_05 dated 6 July 2023 prepared by Vipac in satisfaction of the provisions of SEPP BASIX;

3. in relation to the provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development 2002 (SEPP 65):

1. the application, as amended, is supported by an Architects Design Statement (the Design Statement) in satisfaction of the provisions of cl 50(1A) of Environmental Planning and Assessment Regulation 2000;

2. the provisions of cl 29 of SEPP 65 are not engaged by the subject application in this appeal as the architects who have designed the modifications, Allen Jack and Cottier Architects, are the same architects who had prepared the plans that were the subject of the original consent; and

3. while the provisions of cl 30 of SEPP 65 are relevant to the application in this appeal, those provisions are not a jurisdictional requirement as they provide a series of ‘must not refuse’ criteria which, if these controls are satisfied, the consent authority, or Court on appeal, cannot refuse to grant consent on those grounds;

4. in relation to the provisions of Georges River Development Control Plan 2021 (GRDCP) the Parties have advised, and I am satisfied, that the Approved Development, as modified, would continue to meet the relevant controls within GRDCP, or if not, the Proposed Development, as amended, achieves the objectives of those controls such that it represents a reasonable alternative solution meriting the application of flexibility in the application of those controls as required under the provisions of s 4.15(3A)(2) of the EP&A Act.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s DA;

2. the Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EP&A Act, including the submissions received in response to notification which have been considered by the Parties in reaching agreement;

3. 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 satisfied; and

4. approval of the Proposed Development is in the public interest.

10. Further, I am 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that the Respondent, as the relevant consent authority for the purposes of section 113(1) of the Environmental Planning and Assessment Regulation 2021, has agreed to the Applicant amending its modification application MOD2023/0051 consistent with the plans and documents listed in Annexure A to this judgment.

Orders

14. The Court orders that:

1. The appeal is upheld.

2. Development consent DA2017/0402 granted by the Land and Environment Court of NSW on 23 October 2020 is modified as set out in Annexure B to this judgment.

3. The terms of the consolidated development consent DA2017/0402 as modified are set out in Annexure C to this judgment.

M Chilcott

Commissioner of the Court

68786.23 Annexure A

68786.23 Annexure B

68786.23 Annexure C

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Decision last updated: 21 July 2023