COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application 2017/0438. As amended the application seeks consent for the demolition of existing structures and construction of a residential flat building containing 233 units. The development is proposed at 71-97 Regent Street, Kogarah.
The applicant sought, and was granted leave to amend their development application by notice of motion on December 19 2018. Amongst other modifications the amendments included the removal of the proposed pocket park in the south-west corner of the site proposed in the original application.
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 2 May 2019. Following the conciliation an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.
As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:
1. Pursuant to the provisions of Kogarah Local Environmental Plan 2012 (LEP 2012), the property is zoned R4 - High Density Residential. The proposed use of the site for residential flat buildings is permissible with consent in the zone.
2. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged (Certificate Number: 829289M_08).
3. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.
4. I am satisfied, on the agreed written submissions of the parties, that re-notification of the amended application is not a precondition to consent.
Division 2 of Pt 1 of Sch 1 of the EPA Act prescribes the minimum re-exhibition period for any amended application is 'the period (if any) determined by the person or body responsible for publically exhibiting the matter'. The parties agree that in this case, the person or body responsible for publically exhibiting the application is the Georges River Council. Further, Division A2 of the Kogarah Development Control Plan 2013 at Section 2.6 details Councils policy regarding the re-notification of amended plans in Class 1 development appeals. At Section 2.6(b) the policy states:
"b) If amended plans are submitted as part of a confidential conciliation conference and the Council's experts consider that they adequately address Council's concerns and can be approved, the amended plans will not be re-notified. This is because it is not a requirement of the Court and the resident objectors are not a party to the proceedings and the experts, in making their assessment, will have regard to the matters for consideration specified in section 4.15 of the Environmental Planning and Assessment Act 1979, including any submissions made."
1. Pursuant to cl 6.2(3): Earthworks in LEP 2012 I have considered the relevant matters, as well as the desk top geotechnical study filed by the applicant and the proposed conditions of consent.
2. Pursuant to cl 6.5: Airspace Operations in LEP 2012 the proposed consent incorporates relevant conditions.
3. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard at cl 4.3 of LEP 2012. The development standard establishes a maximum height of 33m above natural ground. The development as proposed exceeds the height standard by 5.3m.
4. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by City Plan Strategy and Development Pty Ltd. This request accords with the amended plans. I have reviewed that request and in accordance with cl 4.6 of LEP 2012, I am satisfied that:
1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).
2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012).
3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.
4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R4 High Density Residential zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.
5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.
6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.
1. The proposed development is compliant with the remaining relevant development standards in LEP 2012.
2. In accordance with State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, a design verification statement has been provided by a registered architect (George Donovan: 6763).
3. The annexed conditions of consent incorporate conditions that levy Development Contributions under s 7.11 of the EPA Act and in accordance with the Section 94 Contribution Plan No. 8 - Kogarah Town Centre and Section 94 Contribution Plan No. 9 - Kogarah Libraries.
4. A further condition (Condition 18(b)) levies contributions under s 7.13(3) of the EPA Act. These are levied on the basis that the relevant Contribution Plan does not adequately reflect the estimated cost of streetscape and public domain works as it was first adopted by Council in June 1999, and was last updated in July 2006, prior to the up-zoning of the current land. This approach, and the amount of the s 7.13(3) contributions, is agreed to by the Applicant.
Applying Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 the parties have persuaded me that it is within power to amend the development contributions levied under the current contributions plan on the basis, agreed by the parties, that they are unreasonable in the particular circumstances of this case.
I note the basis of their agreed conclusion of unreasonableness is the outdated nature of the plan, and the forecast increased density of population arising from the recent up-zoning. I note that it is an agreed fact that the Kogarah City Plan was gazetted on 26 May 2017 and amended the zoning of the subject site from R2 Low Density Residential to R4 High Density Residential.
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.
In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are:
1. The Applicant is granted leave to reply upon the plans, drawings and material listed at 'Annexure A', attached at 'Annexure B' and referred to in the conditions of consent at 'Annexure D';
2. The Clause 4.6 variation application in relation to the height of buildings development standard contained in Clause 4.3 of the Kogarah Local Environmental Plan 2012 and annexed to this agreement at 'Annexure C' is upheld;
3. The appeal is upheld;
4. Development Application No. DA2017/0438 as amended with the leave of the Court with the architectural plans, drawings and material listed at 'Annexure A' and attached at 'Annexure B', for demolition of existing structures and construction of a residential flat building development at 71-97 Regent Street Kogarah NSW 2217 for 233 units comprising:
1. 21 x studio apartments;
2. 95 x 1 bedroom apartments;
3. 99 x 2 bedroom apartments; and
4. 18 x 3 bedroom apartments
is approved subject to the conditions annexed to this agreement as 'Annexure D';
1. The Applicant is to pay the Respondent's costs pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $30,000 on or before 31 May 2019 in full and final satisfaction of all the costs orders made in these proceedings. For clarity all previous costs orders made in these proceedings are set aside.
……………………….
D M Dickson
Commissioner of the Court
Annexure A (136 KB, pdf)
Annexure B (Part 1) (19.3 MB, pdf)
Annexure B (Part 2) (17.1 MB, pdf)
Annexure C (805 KB, pdf)
Annexure D (473 KB, pdf)
[2]
Amendments
27 August 2019 - Pursuant to the Court's order in 95 Regent Street Kogarah Pty Ltd v Georges River Council (No 2) [2019] NSWLEC 1390 handed down on 27 August 2019, the descriptive header in Annexure D has been corrected to include Lot 122 in DP 1106586.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 August 2019