appellant. The Court upheld the appeal, granted development consent for DA2020/0223 subject to conditions in Annexure B, allowed the Applicant to rely on amended plans in Annexure A, ordered the Applicant to...
Key principles
A conciliation agreement under s 34 of the Land and Environment Court Act 1979 that embodies a decision the Court could lawfully have made must be given effect by the Court under...
Where a proposed development contravenes a numerical development standard in a local environmental plan, a written request under cl 4.6 that demonstrates the objectives of the...
The Court need only be satisfied that the jurisdictional prerequisites to the exercise of its s 4.16 EPA Act power are met when approving a parties' s 34 agreement; the Court is...
Issues before the court
Could the Court lawfully give effect to the parties' s 34 conciliation agreement by granting development consent?
Was a written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 justifying a 3.4% minimum lot size breach (966m2 vs 1000m2)...
Was the written request under cl 4.6 adequate to justify the exceedance of the height standard under cl 4.3 of the KLEP?
Plain English Summary
Cornerstone Design appealed a deemed refusal for a residential flat building at 16-18 Elizabeth Street Allawah. The parties settled at a Land and Environment Court conciliation under s 34 and filed a signed agreement. The Commissioner examined statutory prerequisites, including two cl 4.6 written requests to vary Kogarah LEP minimum lot size (1000m2) and height (15m) controls. Finding the objectives of those standards were met and that there were sufficient environmental planning grounds, the Court upheld the written requests, upheld the appeal and granted development consent subject to amended plans and conditions. The Court noted it did not undertake a fresh merits assessment beyond the jurisdictional prerequisites required to approve the parties' agreement.
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Deep Dive
1,900 words · generated 08/08/2026
What happened
Did other statutory prerequisites (earthworks, airport proximity, remediation, SEPP65 design statement, BASIX) require separate or additional...
Cited legislation
No linked legislation citations have been extracted yet.
This is a short Land and Environment Court decision by Commissioner Horton, dated 15 December 2020, resolving a Class 1 appeal by consent following a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). The applicant, Cornerstone Design (NSW) Pty Ltd, appealed to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) after Georges River Council was taken to have refused Development Application No. DA2020/0223 for demolition works and construction of a residential flat building with basement car parking at 16–18 Elizabeth Street, Allawah (see [1]).
The parties attended a conciliation conference conducted by the Commissioner on 2 November 2020 and reached agreement about the terms of a decision that would be acceptable, involving the Court upholding the appeal and granting development consent subject to amended plans and conditions (see [2]–[4]). A signed s 34(10) agreement was filed on 26 November 2020 (see [4]). The parties asked the Court to approve the agreed decision and the Commissioner considered whether the agreement embodied a decision the Court could have lawfully made in the exercise of its functions under s 34(3) LEC Act (see [5]–[6], [8(1)]).
Two statutory development standards in the Kogarah Local Environmental Plan 2012 (KLEP) were contravened: the minimum lot size for a residential flat building under cl 4.1A(2) (1,000m2 required; proposed 966m2, a 3.4% variation) and the height limit under cl 4.3 (15m) with exceedances ranging from about 290mm to 2,205mm at the uppermost floor (see [6(2)], [6(6)]). The Applicant provided written requests under cl 4.6 KLEP (BMA Urban, November 2020) seeking to justify the departures. The Commissioner evaluated whether the objectives of the standards were met notwithstanding the noncompliance and whether sufficient environmental planning grounds existed to justify the contraventions (see [6(3)]–[6(5)], [6(9)]–[6(12)]).
The Commissioner also considered other statutory and technical prerequisites: clause 6.2 (earthworks) supported by geotechnical reports, clause 6.5 (airport controlled activity) in the context of Sydney Airport (conditioned by compliance with a 120 AHD height limit), SEPP55 remediation issues addressed by a Preliminary Site Investigation, the requirement under the Regulation for a qualified designer statement for residential apartment development (SEPP65), and the existence of a BASIX certificate (see [6(13)]–[6(18)]).
Concluding that the jurisdictional prerequisites were satisfied, the Commissioner found the parties' decision was one the Court could properly make and accordingly disposed of the proceedings in accordance with the s 34 agreement: allowing the Applicant to rely on amended plans, ordering payment of wasted costs as agreed or assessed, upholding the cl 4.6 written requests for minimum lot size and height, upholding the appeal and granting development consent subject to conditions, and directing the Council to register the consent on the NSW planning portal (orders 1–7 at [9]).
Why the court decided this way
Two legal threads governed the Court's task.
First, s 34(3) LEC Act gives the Court a statutory duty to dispose of proceedings in accordance with a parties' decision if that decision is one the Court could have made in the proper exercise of its functions. The Court's function in this context includes the power to grant development consent under s 4.16 EPA Act, but that power can only be exercised when the jurisdictional prerequisites are met. Thus the Commissioner’s primary task was to determine whether the parties' agreed outcome satisfied those prerequisites (see [5]–[6], [8(1)]).
Second, the particular statutory prerequisites in dispute were the KLEP development standards. Clause 4.6 of the KLEP permits a consent authority to contravene a development standard where a written request demonstrates that the objectives of the standard are achieved notwithstanding the noncompliance and that there are sufficient environmental planning grounds to justify the contravention. The Commissioner applied that framework to both the minimum lot size departure and the height exceedance (see [6(2)]–[6(5)], [6(6)]–[6(12)]).
On the minimum lot size, the Commissioner accepted the written request and supporting facts: a relatively small numerical shortfall (34m2; 3.4%), evidence of attempts to acquire adjacent land, compliance with relevant floor space and general streetscape compatibility, and the conclusion that strict compliance would be unreasonable or unnecessary in the circumstances. That satisfied the dual cl 4.6 test for that standard (see [6(2)]–[6(5)]).
On height, the exceedance was limited in extent and located at rooftop/common-area elements (lift overrun, fire stairs, part of indoor common area). Evidence addressing overshadowing, visual impact (rendered images), rooftop landscaping mitigation, and the fact that FSR (a primary measure of bulk and scale) complied supported the conclusion that the objectives of cl 4.3 were achieved and there were sufficient environmental planning grounds. The Commissioner accepted these points and upheld the cl 4.6 request for height (see [6(6)]–[6(12)]).
The Commissioner also recorded satisfaction that other technical/statutory matters (earthworks, remediation, SEPP65 designer statement, and BASIX) had been or would be adequately addressed by conditions or provided documents (see [6(13)]–[6(18)]). Having been satisfied on these jurisdictional matters, the Court was obliged by s 34(3) to make the agreed orders; the Commissioner explicitly stated he was not required to undertake fresh merits determinations beyond those prerequisites (see [8(2)]).
Before and after state of the law
Before this decision, the statutory framework was well established:
s 34 LEC Act supports conciliation and settlement with the Court obliged to give effect to settlements the Court could lawfully make (s 34(3)); and
cl 4.6-style mechanisms permit local environmental plan development standards to be varied where objectives are met and sufficient environmental planning grounds are shown.
This judgment is procedural and administrative rather than doctrinally innovative. It applies the established approach: when parties reach a s 34 agreement that requires the Court to exercise its consent power, the Court must check the jurisdictional predicates (zoning, compliance or valid variation of standards, relevant SEPP/regulatory requirements and technical reports) and, if satisfied, give effect to the agreement. The decision reinforces that a modest numerical breach supported by reasoned written requests and technical material can be upheld under cl 4.6, and that approvals by consent can be granted where those prerequisites are met.
After the decision, the law remains the same; the judgment functions as an example of applying s 34(3) and cl 4.6 in a practical, consented resolution. It does not break new legal ground on how cl 4.6 is to be applied generally. The Commissioner’s analysis illustrates the type and weight of material the Court will accept to support a cl 4.6 variation in circumstances of minor numerical noncompliance.
Key passages with plain-English translation
Quoted (paragraph 3): "At the conciliation conference, the parties reached agreement...the Court upholding the appeal and granting development consent...subject to conditions."
Plain English: The parties settled the dispute at conciliation and asked the Court to make orders based on that settlement, namely, allow the appeal and grant consent with conditions.
Quoted (paragraph 6): "The minimum lot size for a residential flat building is 1,000m2...The lot size...is 966m2, equating to a 34m2 departure or 3.4% variation..."
Plain English: The development is slightly under the LEP's minimum lot size requirement, a very small, 3.4 per cent shortfall, which the applicant sought to justify.
Quoted (paragraph 6): "The proposed development exceeds the height standard...the exceedance is identified as ranging between 290mm to 2205mm at the uppermost floor...the visual impact is minor, and rooftop landscaping will soften the appearance..."
Plain English: There is a small height breach, mostly confined to rooftop structures; the Commissioner accepted evidence that the visual and overshadowing impacts are minor and can be mitigated.
Quoted (paragraph 8): "I am satisfied that the parties' decision is one that the Court could have made...I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision."
Plain English: Because the Commissioner was satisfied the necessary legal conditions were met, the Court had to approve the agreement the parties reached and make the orders reflecting that agreement.
What fact patterns trigger this precedent
This decision is directly relevant where:
parties reach a s 34 conciliation agreement that requires the Court to exercise its statutory power to grant development consent; and
the consent requires the Court to accept written cl 4.6 variations of KLEP development standards (or equivalent variation mechanisms in other LEPs) for relatively minor numerical noncompliances, supported by documentation showing objectives are met and sufficient environmental planning grounds exist; and
the parties provide the technical and statutory documentation the Court will inspect as jurisdictional prerequisites (geotechnical reports, remediation assessments, designer statements for SEPP65 matters, BASIX certificate, and, where relevant, airport approvals).
In short, the precedent illustrates the practical pathway to obtain court-sanctioned development consent by agreement where minor breaches exist but are justified through cl 4.6 analyses and supporting material.
How later courts have treated it
The judgment itself does not discuss subsequent treatment by later courts. It is primarily a decision recording a settlement given effect under s 34(3) and an application of cl 4.6 to the facts. As such it is a useful illustrative example of the Court performing its duty under s 34(3) after confirming jurisdictional prerequisites. Any broader precedential influence would depend on later reported decisions citing this judgment; the text does not analyse or overrule previous authority nor establish novel legal principles beyond established statutory frameworks.
Still-open questions
Degree of evidentiary detail: The Commissioner accepted the written requests and a limited set of supporting materials. The decision does not set a hard rule about how much material is required for different scales of noncompliance. Where deviations are larger, the evidentiary threshold and the nature of “sufficient environmental planning grounds” would require further fact-specific analysis.
Interplay with merits assessment: The Commissioner expressly declined to make any fresh merits assessment beyond jurisdictional prerequisites (see [8(2)]). That leaves open the boundary between what the Court must check as a prerequisite to exercising s 4.16 power and what amounts to a merits re-hearing. The decision exemplifies restraint but does not demarcate that boundary in granular terms.
Weight to public interest: The Commissioner found the proposed development to be in the public interest for the purposes of cl 4.6(4)(a)(ii) without an extended public interest analysis. Questions remain as to what level of public interest justification is required in marginal vs more substantial departures from standards.
Treatment of rooftop common areas in height controls: The Commissioner accepted rooftop common area elements and plant structures can produce a permissible, limited exceedance. The judgment does not comprehensively define when rooftop or plant elements will move an exceedance from a minor to a significant impact.
Precedential weight of consent orders: Because this is a consented outcome given effect by the Court under s 34, and because the Commissioner avoided broader merits findings, the decision’s value as a binding precedent on contested questions of principle is limited. The case is most persuasive as a practical example of how the Court approaches s 34 approvals involving cl 4.6 variations.
Note: This deep dive is grounded solely in the text of Cornerstone Design (NSW) Pty Ltd v Georges River Council [2020] NSWLEC 1642 as provided above. It summarises and explains the Court's reasoning and the statutory materials the Court referenced in that judgment.
This is general legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use this analysis or any draft derived from it, get a qualified Australian lawyer to check it.
Judgment (2 paragraphs)
[1]
Judgment
COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council (the Respondent) of Development Application No. DA2020/0223 for demolition works and construction of a residential flat building with basement car parking at 16-18 Elizabeth Street, Allawah (the site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 November 2020. I presided over the conciliation conference.
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 development consent to the development application subject to conditions.
The agreement required the amendment of drawings and other documents, for which purpose I granted an adjournment. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 26 November 2020.
The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.
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. The parties' decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [9].
1. The site is located within the R3 Medium Density Residential zone as identified in the Kogarah Local Environmental Plan 2012 (KLEP). The provisions of the R3 zone permits residential flat buildings with consent that is consistent with the objectives of the zone which are as follows:
Objectives of zone
• To provide for the housing needs of the community within a medium density residential environment.
• To provide a variety of housing types within a medium density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
1. The minimum lot size for a residential flat building is 1,000m2 under clause 4.1A(2) of the KLEP. The lot size of the proposed development is 966m2, equating to a 34m2 departure or 3.4% variation from the 1000m2 minimum site area requirement as identified within the standard.
2. The Applicant relies upon a written request prepared in accordance with cl 4.6 of the KLEP by BMA Urban, dated November 2020 that states the objective of the development standard at cl 4.1A are achieved notwithstanding the noncompliance.
3. I am satisfied that the objective of the standard is achieved. I note the efforts by the Applicant to acquire the adjacent site so as to achieve the minimum lot size area set out in the standard, and the compliance demonstrated with the relevant floor space ratio and the substantial compliance with the height standard. For these reasons I am satisfied that strict compliance with the development standard is unreasonable or unnecessary in accordance with subcl 4.6(3)(a) of the KLEP.
4. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the standard for similar reasons as identified at [6(4)]. Additionally, I accept that the amenity impacts of the proposed development are reasonable, as demonstrated in the shadow diagram drawings and, on the basis of the streetscape character analysis dated 16 May 2020, I am satisfied that the proposed development is not incompatible with older style residential flat buildings in Elizabeth Street and the wider locality.
5. For the reasons set out above, and after considering the zone objectives at [6(1)], I am satisfied that the proposed development will be in the public interest in accordance with cl 4.6(4)(a)(ii) of the KLEP, is minor in numerical terms and raises no matters of significance for which the Secretary's concurrence should not be assumed. Accordingly, I find the written request should be upheld.
6. The proposed development exceeds the height standard at cl 4.3 of the KLEP of 15m and the Applicant relies on a written request prepared in accordance with cl 4.6 of the KLEP by BMA Urban to justify the contravention. The exceedance is identified as ranging between 290mm to 2205mm at the uppermost floor which accommodates the common area, comprising an indoor room and outdoor terrace.
7. The objectives of the height standard at cl 4.3 of the KLEP are in the following terms:
(a) to establish the maximum height for buildings,
(b) to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas,
(c) to provide appropriate scale and intensity of development through height controls.
1. For the reasons set out in the written request, I am satisfied that the objectives of the height standard are achieved notwithstanding the noncompliance. In particular, I note:
the exceedance is limited to the lift overrun, fire stairs and part of the indoor common area with minor overshadowing resulting from the exceedance.
on the basis of the rendered images at p11 of the written request, I accept that the visual impact is minor, and that rooftop landscaping will soften the appearance of the upper level when viewed from the public domain.
the central position of the common area and perimeter landscaping have the effect of limiting sightlines to adjoining properties.
1. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard because the FSR of the proposed development, being a measure of bulk and scale on the site, complies with the control at cl 4.4 of the KLEP, and considering the very minor additional overshadowing resulting from the exceedance which is located on the northern side of the lot ensuring that the majority of shadow falls on the site itself.
2. As the proposed development is consistent with the objectives of the height standard, and of the zone objectives, I am satisfied that it is in the public interest for the written request to be upheld. In arriving at this state of satisfaction, I have also considered the letter prepared by Megan Geddes Landscape architect dated 9 November 2020 confirming that the depth of soil at the front of the site is sufficient to sustain the canopy trees proposed on Dwg No 20-4145.
3. Clause 6.2 of the KLEP requires that I consider certain matters in respect of earthworks prior to the grant of consent. I have considered the Geotechnical Assessment report prepared by Alliance Geotechnical dated 17 April 2020 and a Preliminary Site Investigation prepared by Geotechnical Assessment dated 12 May 2020 and I regard the matters at cl 6.2(3) to be sufficient addressed.
4. The site is within the vicinity of Sydney Airport, and cl 6.5 of the KLEP requires the Applicant to obtain approval for a controlled activity, consistent with s183 of the Airports Act 1996. On the basis of Condition 10 of the conditions of consent, the drawings which confirm the proposed development does not exceed a height of 120 AHD, I am satisfied that this requirement has been, or will be, met.
5. On the basis of the Preliminary Site Assessment prepared by Alliance Geotechnical and dated 12 May 2020, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 - Remediation of Land.
6. As the proposed development is for residential apartment development, the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP65) apply.
7. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I note that the Applicant relies upon a statement provided by N Lycenko (Reg No.3010), dated 25 November 2020 that appears to be in a complying form.
8. Finally, I am satisfied that the application is accompanied by a BASIX certificate (BASIX Certificate, No. 1091123M_02, dated 12 November 2020), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).
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. 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, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are:
1. The Applicant is granted leave to rely on the amended plans and documents set out in Annexure A.
2. The Applicant is to pay the Respondent's costs that have been thrown away as a result off the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.
3. The Applicant's amended written request under cl 4.6 of the Kogarah Local Environmental Plan 2012 (KLEP) prepared by BMA Urban and dated November 2020, seeking a variation of the development standard for minimum lot size for multi dwelling houses, residential flat buildings and seniors housing under cl 4.1A of the KLEP is upheld.
4. The Applicant's amended written request under cl 4.6 of the KLEP, prepared by BMA Urban and dated November 2020 seeking a variation of the development standard for height of buildings under cl 4.3 of the KLEP, is upheld.
5. The appeal is upheld.
6. Development consent is granted to development application No. DA2020/0223 for demolition works and construction of a residential flat building with basement car parking at 16-18 Elizabeth Street, Allawah, subject to the conditions of consent in Annexure B.
7. The Respondent is to register the development consent granted in relation to Development Application No. DA-2020/0223 on the NSW planning portal within 14 days of the date or these orders.
…………………..
T Horton
Commissioner of the Court
Annexure A (105731, pdf)
Annexure B (422298, pdf)
Amended Plans (8714684, pdf)
[2]
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: 15 December 2020
Parties
Applicant/Plaintiff:
Cornerstone Design (NSW) Pty Ltd
Respondent/Defendant:
Georges River Council
AI Analysis
Outcomeappellant
Disposition:
The Court upheld the appeal, granted development consent for DA2020/0223 subject to conditions in Annexure B, allowed the Applicant to rely on amended plans in Annexure A, ordered the Applicant to pay Respondent's wasted costs from the amendment, upheld the Applicant's cl 4.6 written requests to vary KLEP cl 4.1A (minimum lot size) and cl 4.3 (height), and directed the Respondent to register the consent on the NSW planning portal within 14 days (orders 1–7 at [9]).