Kogarah Investments No 1 Pty Ltd v Georges River Council

Catchwords: DEVELOPMENT APPLICATION — alterations and additions to an approved residential flat building — determination of applicable parking standard — statutory interpretation of non-discretionary standards for parking in SEPP Housing — development compliant with non-discretionary standards for parking — preconditions to consent met — development application acceptable on merit — appeal upheld

Legislation Cited: Conveyancing Act 1919 (NSW), s 88E
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.46, 7.11, 7.12
Land and Environment Court Act 1979 (NSW), s 34
Water Management Act 2000 (NSW), s 90
Environmental Planning and Assessment Regulation 2021 (NSW), ss 3, 23, 29
Georges River Local Environmental Plan 2021, cll 4.6, 5.10, 6.2, 6.3, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Housing) 2021, Chs 2, 4, 5, 6, Pt 1, Div 1, ss 12, 13, 13A, 15A, 15B, 15C, 16, 17, 18, 19, 20, 21, 24, 42, 142, 144, 147, 148, 157, 179, 180, Schs 9, 10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.2
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited: Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75
Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Kogarah Investments No. 1 Pty Ltd v Georges River Council [2020] NSWLEC 1214

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Georges River Council Local Infrastructure Contributions Plan (October 2021)
Georges River Development Control Plan 2021
Roads and Traffic Authority, Guide to Traffic Generating Developments (October 2002)

Category: Principal judgment

Parties: Kogarah Investments No 1 Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
G Farland (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/23807

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: On 18 November 2024, Kogarah Investments Pty Ltd (the Applicant), lodged a development application DA 2024/0544 (the development application) with Georges River Council seeking consent for development described as alterations and additions to the 11 storey residential flat building approved pursuant to development consent DA 2019/0319 granted by the Court in Kogarah Investments No. 1 Pty Ltd v Georges River Council [2020] NSWLEC 1214 (the existing consent).

2. The existing consent approved the following development at 16-22A Gladstone Street and 2 Victoria Street, Kogarah:

3. The retention and conservation of the local heritage item at 2 Victoria Street,

4. The demolition of other structures, and

5. The construction of an 11-storey residential flat building containing 77 units and including 3 levels of basement car parking.

6. The development application proposes the following development 2-4 Victoria Street, Kogarah (Lot 3 DP 1265877 and Lot 1 DP 171055):

7. The incorporation of 4 Victoria Street as ground floor communal space in the proposed residential flat development,

8. An amended façade design,

9. Various internal reconfigurations of the unit floor plans,

10. Additional height to a 16-storey residential flat building containing 95 apartments (including 17 apartments to be used as affordable housing), and

11. Provision of 72 basement parking spaces over three basement levels.

12. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 22 May 2025. The conciliation conference was adjourned to provide the parties the opportunity to seek to resolve their dispute, but the conciliation was ultimately terminated on 17 July 2025 and the matter listed for hearing.

13. The Applicant was granted leave to amend their development application on 9 October 2025. Broadly the following amendments were made:

14. An addition of two storeys and removal of the proposed roof top common open space,

15. The addition of a further basement level to increase the total parking provision to 72 spaces,

16. An increase in the floor area of the ground floor communal open space,

17. Amendments to the waste room, onsite detention tank design, driveway ramp clearances, and

18. Changes to the external materials and finishes proposed.

Issues in dispute

6. The issues in dispute between the parties have been resolved with the exception of the Respondents contention that the development application does not comply with the non-discretionary parking standards in State Environmental Planning Policy (Housing) 2021 (SEPP Housing). In particular, the Council contends that the development does not provide the quantum of visitor parking required by the non-discretionary standard at s 148(2)(a) of SEPP Housing. The Respondent contends that the provision of inadequate visitor parking will negatively impact the availability of parking within the locality where there is a high demand for on street parking.

7. Further, if the Court accepts that the standard at s 148(2)(a) of SEPP Housing is applicable, the Respondent argues that the Court, standing in the shoes of the consent authority would not uphold the request to vary the standard pursuant to cl 4.6 of the Georges River Local Environmental Plan 2021 (LEP 2021). Accordingly, the Respondent argues that the development application should be refused on this basis.

Site and Locality

8. The site is known as 2-4 Victoria Street, Kogarah and is legally described as Lot 3 in DP 1265877 and Lot 1 DP 171055. The site is rectangular in shape with a frontage to Victoria Street of approximately 51 metres, a frontage to Gladstone Street of approximately 37m and an area of 1838m2.

9. The development consent applied to a smaller site comprising seven allotments formerly known as 16-22A Gladstone Street and 2 Victoria Street, Kogarah with a total area of 1150m2. The seven allotments have been consolidated to form 2 Victoria Street, Kogarah.

10. The site includes an existing cottage which is identified as a local heritage item, “house and garden Hindmarsh” (Item 110, Schedule 5, LEP 2012).

11. Consistent with the development consent, the development application seeks to retain the heritage item.

12. A Sydney Water Corporation sewer tunnel runs through the site which is also burdened with an easement benefitting Sydney Water. The architectural plans indicate that the easement is located approximately 10m below the proposed finished level of basement three.

13. The site is nominated as being located within the Kogarah North Precinct under the Georges River Development Control Plan 2021 (DCP 2021). The locality is transitioning from older single and double storey dwellings, low scale residential flat buildings and commercial premises to high density residential consistent with the zoning of the land under LEP 2012.

14. Kogarah Train Station is situated approximately 400m to the site.

Expert evidence

15. The parties traffic experts, Mr Lo for the Applicant and Mr McCarthy for the Respondent, participated in joint conferencing and prepared joint expert reports in the proceedings. They were not required for oral evidence or cross examination.

Planning framework

16. Section 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) requires that, in considering a development application, the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

17. Before addressing the merit issues raised by the Respondent as to whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met.

Preconditions to the grant of consent

18. Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021), a development application may be made by the owner of the land, or another person with consent of the owner. The development application was lodged by Aaron Sutherland of Sutherland & Associates Planning with the consent of the owner of the land (Kogarah Development No 1 Pty Ltd).

19. The development application is integrated development pursuant to s 4.46 of the EPA Act and s 90 of the Water Management Act 2000 (NSW). The development application received General Terms of Approval from Water NSW on 2 December 2025.

20. The development application was notified by the Respondent between 30 January and 20 February 2025. A total of 30 submissions were received by the Council in response to the notification. The amended development application was renotified by the Respondent in October 2025. One submission was received by the Council. A member of the public also addressed the Court at the commencement of proceedings onsite. With the assistance of the amended development application documents filed in the proceedings I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or by the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

21. The development application was referred to Ausgrid in accordance with s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). The Respondent received a response from Ausgrid noting no objection to the proposed development application subject to the imposition of the nominated conditions. The parties agree, and I accept, that s 2.48 of the SEPP TI is satisfied.

22. The amended development application is accompanied by a complying BASIX Certificate. Further, the development application includes an ESD Report which satisfies s 3.2 of the State Environmental Planning Policy (Sustainable Buildings) 2022. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part. A condition of consent requires compliance with the commitments detailed in the BASIX certificate.

23. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The Statement of Environmental Effects notes that the site has been the subject of a Preliminary Site Investigation (PSI). The PSI concludes that the site is suitable for the proposed development. On the basis of the PSI, I am satisfied that the site will be suitable for the purpose of the development application.

24. The development application is for the purpose of ‘infill affordable housing’, and accordingly Pt 2, Div 1 of SEPP Housing applies to the development application.

25. The term ‘infill affordable housing’ is not defined in SEPP Housing. Affordable housing is defined at s 13 as:

13 Affordable housing—the Act, s 1.4(1)

(1) In this Policy, a household is taken to be a very low income household, low income household or moderate income household if—

(a) the household—

(i) has a gross income within the following ranges of percentages of the median household income for Greater Sydney or the Rest of NSW—

(A) very low income household—less than 50%,

(B) low income household—50–less than 80%,

(C) moderate income household—80–120%, and

(ii) pays no more than 30% of the gross income in rent, or

(b) the household—

(i) is eligible to occupy rental accommodation under the National Rental Affordability Scheme, and

(ii) pays no more rent than the rent that would be charged if the household were to occupy rental accommodation under the Scheme.

(2) In this section—

Greater Sydney means the area that the Australian Bureau of Statistics determines from time to time to be the Greater Sydney—Greater Capital City Statistical Area.

National Rental Affordability Scheme has the same meaning as in the National Rental Affordability Scheme Act 2008 of the Commonwealth.

Rest of NSW means the area that the Australian Bureau of Statistics determines from time to time to be the Rest of NSW—Greater Capital City Statistical Area.

26. Part of Ch 2 of SEPP Housing deals with development for the purposes of affordable housing. The part is divided into six Divisions. Four Divisions (Division 1: In-fill affordable housing, Division 2: Boarding Houses, Division 4 Supportive accommodation and Division 6: Residential flat buildings) demarcate the relevant controls by housing type.

27. In order for the provisions of Div 1 ‘In-fill affordable housing’ to apply, s 15C must be satisfied. Pursuant to s 15C Pt 2, Div 1 of SEPP Housing applies as:

28. The development is permitted with consent pursuant to the Georges River Local Environmental Plan 2021 (LEP 2021): s 15C(1)(a) of SEPP Housing,

29. The proposed affordable housing component of the development meets the 10% requirement of s 15C(1)(b) of SEPP Housing as it proposes to provide 15.6% of the gross floor area as affordable housing, and

30. Is proposed on land which is within the Six Cities Region and in an accessible area.

31. ‘Accessible area’ is defined in SEPP Housing as land within 800m of the public entrance way of a railway, metro or light rail station. This is met by the current development application given the sites proximity to Kogarah Railway Station.

32. Further, pursuant to s 13A of SEPP Housing, development to which Pt 2, Div 1 applies may also be residential apartment development under Ch 4 of SEPP Housing. Chapter 4 of SEPP Housing applies to the development application as it meets the matters prescribed at ss 144(2) and 144(3), namely:

(a) It is development for the purposes of residential flat buildings, (b) It proposes erection of a new building, (c) That building is over 3 storeys (not including carparking), and (d) The building contains at least 4 dwellings.

30. Pursuant to s 16 of SEPP Housing the maximum applicable floor space ratio (FSR) which applies to the land is that which is mapped under LEP 2021, plus additional FSR up to 30% based on the application of s 16(2) of SEPP Housing. It is an agreed submission of the parties that the application of this calculation results in a maximum additional FSR, which is not fully utilised by the amended development application. The development meets the prerequisites to access the additional FSR and is compliant with the requirements of s 16 of SEPP Housing.

31. Pursuant to ss 16(3) and 18, as the development is for the purpose of residential flat buildings, and provides greater than 10% of affordable housing, the maximum height standard applicable in LEP 2021 is also increased by 30%. The application of both the LEP 2021 standard and s 16(3) of SEPP Housing results in a maximum height standard of 42.9m. In part to maintain an appropriate curtilage to the heritage item on the site, the proposed development exceeds the maximum height standard and relies on a variation to the height standard. The amended development application proposes a maximum height of 54.3m. Accordingly, the development application seeks a variation to the development standard pursuant to cl 4.6 of LEP 2021. The development application is accompanied by a written request to vary the standard. I have read the written request prepared by Sutherland & Associates Planning dated 23 July 2025 and in accordance with cl 4.6 of LEP 2021, and I am satisfied that:

32. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the implied objectives of the Height standard in s 16(3) of SEPP Housing are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). I note the written request also addresses the objectives of the height standard in LEP 2021. The proposed development will offer a compatible streetscape presentation and is consistent with the desired future character. It will not have an unreasonable overshadowing impact, disrupt views or result in adverse privacy impacts. Applying the reasoning of Preston CJ at [22] of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, I find that the Applicant has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

33. I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). In particular, I find that the reasons articulated in written request in relation to site isolation, the provision of affordable housing and protection of heritage to be sufficient.

34. The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

35. Section 19 of SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for site area, landscaped area, deep soil zone, solar access, and accommodation size. Accordingly, consent cannot be refused on any of those grounds. The compliance of the development with the standards for parking provision at ss 19(e) and (f) are in contention between the parties and are addressed at [52].

36. As required by s 20(3) of SEPP Housing in determining the development I have considered whether the development is the desired future character of the precinct. I acknowledge the agreed submission of the parties that the North Kogarah precinct is an area undergoing transition to higher forms of residential development.

37. The development application seeks the provision of affordable housing and the conditions in Annexure A to this judgment require the imposition of a restriction as to use pursuant to s 88E of the Conveyancing Act 1919 (NSW) against the title of the land to ensure the required apartments are used for affordable housing and managed by a registered community housing provider. I find that this satisfies the requirements of s 21 of SEPP Housing.

38. Where an application relates to residential apartment development, s 29(1A) of the EPA Regulation 2021 requires that the application must be accompanied by a statement by a qualified designer, defined at s 3 of EPA Regulation 2021 as a person registered as an architect in accordance with the Architects Act 2003 (NSW). The amended development application is accompanied by a design verification statement satisfying these requirements.

39. Section 147 of SEPP Housing mandates that the consent authority must consider three matters. Firstly, the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9 the Housing SEPP. Secondly, the Apartment Design Guide (ADG) and thirdly, any advice received from a design review panel within 14 days of the referral of the matter to them.

40. The Applicant submitted a Design Verification Statement and ADG Assessment as part of the development application. With the benefit of those documents and reviewing the plans, I have considered the design principles and the ADG and accept the agreement of the parties that those matters have been addressed by the amended development application. I note that Georges River Local Government Area does not have a design review panel.

41. Section 148 of SEPP Housing identifies non-discretionary development standards that apply to the development in relation to: the number of car spaces; the internal area of apartments; and ceiling heights. These standards all refer to the provisions of the ADG and with the exception of parking provision are agreed to be met by the amended development application. The applicability of the standards for parking provision at s 148(2)(a) are in contention between the parties and are addressed at [52].

42. The site is zoned R4 High Density Residential pursuant to LEP 2021. Residential flat buildings are a use permitted with consent in the zone. In determining the development application, I have given consideration to the zone objectives which are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable other land uses that contribute to the vibrancy of the neighbourhood while ensuring that business centres remain the focus for business and retail activity.

• To encourage development that maximises public transport patronage and promotes walking and cycling.

40. Consistent with the decision of the Court in Kogarah Investments No. 1 Pty Ltd v Georges River Council [2020] NSWLEC 1214, I have considered the effect of the proposed development on the heritage significance of the heritage item, pursuant to cl 5.10(4) of LEP 2021, and I am satisfied that the amended proposal will have an acceptable impact on the identified heritage significance of the house and garden because the applicant has provided a complete suite of heritage assessments and documentation, including a Conservation Management Plan, and the proposal includes detailed commitments to the conservation of the heritage item.

41. The proposed development involves the carrying out of earthworks associated with the basement carpark. Clause 6.2 ‘Earthworks’ of LEP 2021 applies. In relation to cl 6.2(3) criteria, the development application is supported by a Geotechnical report prepared by E I Australia and civil and stormwater engineering plans. In determining whether to grant consent, I have given consideration to the matters at cl 6.2(3) and I find that none warrant the refusal of the development application.

42. As required by cl 6.3 Stormwater in LEP 2021 I find I can be satisfied that the development is designed to maximise the use of water permeable surfaces, includes on site detention and is designed to avoid significant adverse impacts from stormwater on adjoining properties. Further, I find that the stormwater design will minimise impacts on public infrastructure. I am satisfied the requirements of cl 6.3 of LEP 2021 are met.

43. Pursuant to cl 6.7(2) Airspace Operations of LEP 2021 consent must not be granted to development unless that:

(a) the consent authority has consulted the relevant Commonwealth body, and

(b) the relevant Commonwealth body advises the consent authority that—

(i) the development will penetrate the Limitations or Operations Surface but it does not object to the development, or

(ii) the development will not penetrate the Limitations or Operations Surface.

44. The site is subject to a 51m Obstacle Limitation Surface (OLS). The amended development application proposes a maximum height of 54.3m, thereby breaching the OLS.

45. In reference to the preconditions to consent in cl 6.7(2) of LEP 2021:

(a) The amended development application was referred to the Commonwealth Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts (DITRDCSA) who is the relevant Commonwealth body. (b) On the 11 December 2025 the DITRDCSA provided approval for the intrusion of the proposed building on the site to intrude into the prescribed airspace for Sydney Airport. That approval is subject to conditions which are included in Annexure A.

46. The correspondence from DITRDCSA satisfies the requirements of cll 6.7(2)(a) and (b). The preconditions to consent in cl 6.7(2) of LEP 2021 are satisfied.

47. Clause 6.8 Development in areas subject to aircraft noise applies as the site is mapped in the Australian Noise Exposure Forecast (ANEF) contour 20 or greater and involves the erection of a new building. Pursuant to cl 6.8(3), in determining the development application, I have given consideration to the matters listed. I am satisfied these matters do not warrant the refusal of consent as the annexed conditions include requirements to ensure the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2015.

48. The site contains a dwelling house and is located in a long established urban area. It has an existing supply of water, electricity and sewerage. The civil design plans demonstrate that the proposed development is capable of being developed despite the presence of existing sewerage infrastructure on the site. The parties submit, and I accept, that stormwater management can be undertaken on the site and that parking access by way of suitable vehicular access can be provided. Accordingly, I am satisfied that relevant essential services are available for the Proposed Development as required by cl 6.9 of LEP 2021.

49. Clause 6.10 ‘Design Excellence’ in LEP 2021 applies as the proposed development has a height of over 12m on land zoned R4 High Density Residential. Having considered the matters at cl 6.10(4) I am satisfied that the development application, as amended, exhibits design excellence as required by cl 6.10(3) of LEP 2021 on the following basis:

50. A high standard of architectural design, materials and detailing has been achieved. The proposed building design and materials complement the existing developments in the streetscape, providing a well separated building mass, of muted tones and colours, that is supported by functional landscaped areas for communal open space.

51. The proposed development facilitates an optimised outcome by amalgamating the isolated site at 4 Victoria Street, Kogarah and achieving a cohesive and integrated streetscape presentation.

52. The proposed materials and finishes are of a high quality and will contribute to the character of the locality.

53. The development will not detrimentally impact on view corridors. The proposed design of the building does not cause adverse impact on views, public domain or landmarks.

54. In relation to the matters listed at cl 6.10(5)(d) I am satisfied that:

(a) The site is suitable for the development in view of the satisfactory resolution to issues under SEPP RH, SEPP Housing and other key criteria such as stormwater management, landscaping, acoustic and parking in LEP 2021 and Georges River Development Control Plan 2021 (DCP 2021). (b) The proposed residential use is a permissible use in the zone and compatible with existing uses. (c) The development facilitates the retention, conservation and positive reuse of the existing heritage item. (d) The proposed development would not result in any significant adverse impact on neighbouring sites in terms of solar access, building separation, setbacks, amenity or urban form. (e) The design provides for cycle, vehicular and service access and is designed to comply with the relevant Australian Standards in terms of circulation and access requirements. (f) The proposed setbacks and building separation are compliant and, where varying, acceptable through appropriate building massing and articulation, landscaping and privacy treatments. (g) The design of the bulk, massing and modulation of the buildings is detailed design verification statement which accompanies the development application. With the assistance of this statement and the architectural plans I am satisfied that development application addresses the bulk, massing and modulation of buildings. (h) The proposed design has considered and adopted the relevant sustainable design principles, as described in the ADG. The ADG standards for solar access are met. Visual and acoustic privacy has been achieved. (i) The built form addresses the street frontage, and the location of the pedestrian entry provides an active street frontage. The principles of crime prevention through environmental design have been addressed in the design of the building. (j) The updated landscape design and planting densities demonstrate excellence and integration of landscape design. Canopy trees are proposed which will assist in maintaining canopy cover. (k) The development provides communal open spaces which include appropriate amenities. (l) The development provides appropriate waste management and recycling capacity.

50. Clause 6.11 Environmental Sustainability in LEP 2021 applies to the development application as it is proposed on land zoned R4 High Density Residential, involves the erection of a new building and has a gross floor area greater than 1500m2. With the assistance of the BASIX certificate, the compliance of the development with the standards detailed in the ADG I am satisfied that consideration has been given to the matters at subcl (a) through (e). Further, given the proximity of the site to Kogarah Railway Station and the local bus network I am satisfied that consideration has been given to means to reduce car dependence.

51. DCP 2021 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2021. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

52. Having considered the preconditions to the grant of consent and found them satisfied the remainder of the judgment considers the merit contentions raised by the Respondent.

Does the development application meet the applicable non-discretionary standards for the provision of parking spaces under SEPP Housing?

53. The parties dispute centres on the interpretation of the parking controls in at s 19, Div 1 of SEPP Housing. The relevant provision states:

19 Non-discretionary development standards—the Act, s 4.15

(1) The object of this section is to identify development standards for particular matters relating to residential development under this division that, if complied with, prevent the consent authority from requiring more onerous standards for the matters.

Note—

See the Act, section 4.15(3), which does not prevent development consent being granted if a non-discretionary development standard is not complied with.

(2) The following are non-discretionary development standards in relation to the residential development to which this division applies—

..

(e) the following number of parking spaces for dwellings used for affordable housing—

(i) for each dwelling containing 1 bedroom—at least 0.4 parking spaces,

(ii) for each dwelling containing 2 bedrooms—at least 0.5 parking spaces,

(iii) for each dwelling containing at least 3 bedrooms— at least 1 parking space,

(f) the following number of parking spaces for dwellings not used for affordable housing—

(i) for each dwelling containing 1 bedroom—at least 0.5 parking spaces,

(ii) for each dwelling containing 2 bedrooms—at least 1 parking space,

(iii) for each dwelling containing at least 3 bedrooms—at least 1.5 parking spaces,

…

(3) Subsection (2)(c) and (d) do not apply to development to which Chapter 4 applies.

54. The Respondent argues that the proposed development fails to provide sufficient on-site parking. The Respondent argues that the non-discretionary development standard for parking at s 19 of SEPP Housing (which is located in Chapter 2 ‘Affordable Housing’) is not the only applicable non-discretionary development standard. Mr Seton argues that the requirements of s 19 should be applied in conjunction with requirements of s 148. Section 148 is located in Chapter 4 of SEPP Housing ‘Design of residential apartment development’. It states:

148 Non-discretionary development standards for residential apartment development—the Act, s 4.15

(1) The object of this section is to identify development standards for particular matters relating to residential apartment development that, if complied with, prevent the consent authority from requiring more onerous standards for the matters.

Note—

See the Act, section 4.15(3), which does not prevent development consent being granted if a non-discretionary development standard is not complied with.

(2) The following are non-discretionary development standards—

(a) the car parking for the building must be equal to, or greater than, the recommended minimum amount of car parking specified in Part 3J of the Apartment Design Guide,

(b) the internal area for each apartment must be equal to, or greater than, the recommended minimum internal area for the apartment type specified in Part 4D of the Apartment Design Guide,

(c) the ceiling heights for the building must be equal to, or greater than, the recommended minimum ceiling heights specified in Part 4C of the Apartment Design Guide.

55. The definition of Apartment Design Guide in Sch 10 of SEPP Housing is: "Means the Apartment Design Guide published by the department in July 2015." The effect of the application of s 148(2)(a) to the development application is that the design criteria in Part 3 J of the Apartment Design Guide (ADG) applies to the determination of the non-discretionary development standard for parking. The relevant section of Part 3J that relates to the quantum of parking in the ADG states:

56. The parties agree that in this case applying the terms of 3J of the ADG in the Councils Development Control Plan has a higher requirement than the requirements of the RTA NSW “Guide to Traffic Generating Developments” (GTGD). Accordingly, the Respondent argues that reference must be made to the GTGD to determine the rate of parking required under s 148(2)(a) of SEPP Housing. The relevant section of the GTGD is extracted below:

57. Accordingly, the Respondent argues that the Metropolitan sub-regional visitor parking rate in the GTGD applies and requires the provision of one visitor parking space per five units. This results in the development requiring 19 visitor parking spaces.

58. In summary the Respondent submits when SEPP Housing is read as a whole:

59. The parking rates at ss 19(e) and (f) apply to the determination of parking rates for the units themselves. This is because there is an inconsistency between the parking in the rates for dwellings in ss 19(e) and (f) and the rates determined by applying s 148. In determining how to resolve the inconsistency, the Court should prefer the specific provisions (those for affordable housing in Ch 2) over those for all residential flat development in Ch 4.

60. There is no provision, or inconsistency, in SEPP Housing which operates to oust any requirement in s 148 for the provision of visitor parking. The requirement for visitor parking is determined by applying the separate identified in the GTGD, which for this development is 19 spaces.

61. Given the development application has two parking spaces more than is required by the calculation at ss 19(e) and (f), but before the calculation at s 148 for visitor parking, the shortfall in the development is 17 spaces.

62. Mr Seton’s reasoning can be summarised as follows:

63. There is agreement that the proposed development complies with the required parking provision for the units themselves, which is the requirement detailed at ss 19(e) and (f) in Ch 2 of SEPP Housing, i.e. 70 spaces.

64. However, this is not the totality of parking requirements that apply under SEPP Housing as the development is for the purpose of residential flat development, accordingly Ch 4 of SEPP Housing also applies. The parking requirements in Ch 4 are at s 148(2)(a) of SEPP Housing.

65. The requirements of s 148(2)(a) are separate to the requirements ss 19(e) and (f) and both of the provisions apply concurrently. He argues that the parking requirements at ss 19(e) and (f) don't address the number of spaces that are to be provided for visitors to the development that are not specifically linked to individual dwellings. The wording of ss 19(e) and (f) are directed to the parking demand generated by the use of the dwelling only. In contrast the parking rates that are determined by the application of s 148(2)(a) of SEPP Housing, the ADG and the GTGD include both the demand generated by the dwelling and visitors to the development.

66. In support of the argument that both provisions apply, Mr Seton submits that Ch 2 deals with a broad range of residential development. As defined by s 15B residential development, to which Ch 2 applies, includes forms of residential development from dwellings through to residential flat buildings. He argues that when reading the provision, the term ‘residential development' in the chapeau of s 19 should be given this broader meaning in the definition at s 15B of SEPP Housing. It is incongruous to say the parking requirements for that broad range of residential developments are determined by the calculation at ss 19(e) and (f). The non-discretionary development standards at s 19 are silent in relation to any requirement for visitor parking, for residential flat development those parking requirements are calculated by applying s 148(2)(a) of SEPP Housing.

67. The provisions of ss 19(e) and (f) and 148 of SEPP Housing are not inconsistent. The provisions apply to different matters. Subsections 19(e) and (f) to the parking demand from the dwellings, s 148 for visitor parking. Therefore, there is no inconsistency that needs to be resolved in calculating the applicable rate of visitor parking spaces as s 19 does not address visitor parking (it is silent). Therefore, the rates at s 148 for visitor parking apply.

68. Mr Seton acknowledges that the application of s 148(2)(a) (and the ADG and the GTGD) generates rates for both the dwellings and visitor parking. However, applying common rules to statutory interpretation, the provisions of s 19 are more specific (as they deal specifically with affordable housing) as opposed to the general rates that are determined by applying s 148 of SEPP Housing. Mr Seton submits the Court should apply the statutory rule generalia specialibus consistent with the approach detailed by O'Connor J in Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 at [14] as:

"Where there is a general provision which if applied in its entirety would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision insofar as it is inconsistent with the special provision, must be deemed not to apply."

7. The effect of this approach is that the parking rates applicable to the specific units determined by s 148(2)(a) are inconsistent with the parking rates determined by the application of ss 19(e) and (f). Accordingly, the general rates determined by s 148(2)(a) are deemed not to apply and the specific rates at ss 19(e) and (f) apply. Importantly though, Mr Seton argues that any inconsistency between the provisions does not extend to the visitor parking rates in s 148(2)(a), so they should be applied in addition to the rates at ss 19(e) and (f).

8. Finally, Mr Seton reasons that this interpretation is supported by the provisions at ss 13A and 144. He notes that s 144 of SEPP Housing is headed, "Application of chapter", and subs (6) says, "To avoid doubt, development to which Chapter 2, Part 2, Division 1, 5 or 6 or Chapter 5 or Chapter 6 applies may also be residential apartment development under this chapter."

9. Applying this reasoning Mr Seton argues that the development application requires the Court to consider and uphold a written request to vary the standard at s 148 of SEPP Housing in order to grant consent to the development.

10. The Applicant argues that the proposed development complies with the requirements of ss 19(e) and (f) by the provision of 72 spaces, supported by the following calculation:

11. 41 x one-bedroom units, of which 9 are affordable

12. 52 x two-bedroom units, of which 8 are affordable

13. 2 x three – bedroom unit

Total required by ss 19(e) and (f): 69.6 spaces, or 70 spaces. Provided in the development application: 72 spaces.

62. The Applicant says that any request by the consent authority to provide additional parking for the development, over and above the requirements of ss 19(2)(e) and (f) of SEPP Housing cannot be imposed as it would be more onerous than those discretionary standards required and would therefore offend s 4.15(2) of the EPA Act. Accordingly, the Applicant argues that any submission that the development is required to provide visitor parking, in addition to the requirements of ss 19(e) and (f) is incorrect for the following reasons:

63. The parking rates determined by the application of ss 19(e) and (f) are the totality of parking spaces that is required for a residential development where that development provides infill affordable housing. The parking rates incorporate the parking demand generated by the dwellings and are inclusive of visitors to the development. Subsections 19(2)(e) and (f) represent the totality of the parking requirements for the development and there is no provision or section which indicates the need to refer to another part of SEPP Housing for further input into the determination of the parking standard that applies.

64. The non-discretionary parking standards in ss 19(2)(e) and (f) have been complied with, and therefore, given the terms of s 4.15(2) of the EPA Act, the Court cannot refuse the application based on insufficient parking. Further, to require additional parking provision would be to impose a more onerous requirement than those standards require.

65. The non-discretionary standard applies to the whole development. Subsection (2) states "The following are non-discretionary development standards in relation to the carrying out of development to which this Division applies". The function of the standards at ss (e) and (f) are to derive a parking requirement for the whole of the residential development. The Respondents submission that the parking demand determined by ss 19(e) and (f) is only for the parking demand from the dwellings is inconsistent with the terms of the provision which are directed to ‘the residential development’ as a whole.

66. Further, the expression "parking spaces for dwellings" used in both ss (e) and (f) encompasses visitors. Part of the use of the dwelling, whether for affordable housing or not, includes visitors coming to those dwellings.

67. The Applicants interpretation is supported by a contextual analysis of the provision in the context of SEPP Housing. For example, to adopt the respondent's view, and take the visitor parking as a flat rate from another part of SEPP Housing, undermines the use of differential rates for non-affordable and affordable housing detailed in the SEPP. Further, SEPP Housing locates affordable housing in specific contexts, relevantly in this matter as infill, and in accessible areas. The housing is delivered with a mandated proportion of affordable housing, in existing suburbs, with good access to public transport. The terms of s 15C in Div 1 further delineates preconditions that limit the applicability of the provisions. When read in the context of ss 16, 17 and 18, Div 1 limits the required provision of parking on the basis of public transport accessibility of the site, at the same time as incentivising the provision of affordable housing by permitting an up to 30% increase in floor space and height. The Applicant submits that to seek to apply additional parking requirements from another part of SEPP Housing undermines the interaction of this suite of controls which seek to deliver greater density and provide affordable housing.

68. Finally, Mr Farland argues that once a development provides at least 10% affordable housing and meets the other preconditions in s 15C of SEPP Housing, the provisions of Div 1 Pt 2, Ch 2 apply. Those provisions includes ss 19(2)(e) and (f). Despite the development being for the purpose of residential apartment development, s 148 does not apply to parking provision as the determination of parking is within the purview of ss 19(2)(e) and (f).

69. The character of the rate of parking as described by s 148(2)(a) is that “carparking for the building must be equal to, or greater than, the recommended minimum amount of carparking specified in Part 3 J of the Apartment Design Guide”. The form of the provision is in contrast to s 19(2)(e) and (f) which provides a rate that is not required to be exceeded.

70. Applying this reasoning Mr Farland argues that the development application requires complies with the parking requirements of SEPP Housing. On this basis the Respondents contention is not made out, and the development application should be approved.

Findings

64. Section 19 of SEPP Housing details the non-discretionary standards which apply to development for the purposes of infill affordable housing. The non-discretionary standards in SEPP Housing (an environmental planning instrument) are required to be applied in a manner consistent with the requirements of s 4.15(2) of the EPA Act. The issue in dispute centres on the standards at ss 19(e) and (f) and whether they are the only non-discretionary standards for parking applicable to the subject development application.

65. The parties’ submissions outline three possible scenarios for consideration:

66. The provisions of ss 19(e) and (f) are the totality of the applicable non-discretionary standards for the provision of parking spaces under SEPP Housing. This is the Applicant’s case.

67. The provisions of ss 19(e) and (f) are inconsistent with the provisions of s 148 of SEPP Housing as they both contain applicable non-discretionary standards for the provision of parking spaces under SEPP Housing. Accordingly, it is necessary to resolve the inconsistency in the operation of the provisions. The Respondent argues that, applying the statutory rule of generalia specialibus (the general does not derogate from the specific) the Court would apply the parking rates at ss 19(e) and (f) for the dwellings over those in s 148 of SEPP Housing. This is founded on the submission that the standards in s 19 are applicable only to infill affordable housing developments which meet the conditions in s 15C, whereas the standards in s 148 apply to all residential apartment developments in the State. Thereby the standards in s 19 are specific, whereas the standards in s 148 are more general.

68. That in addition to the reasoning in (2), the Respondent argues that the resolution of any inconsistency between the provisions does not extend to the visitor parking rates in s 148(2)(a), so they should apply in addition to the rates at s 19(e) and (f).

69. For the reasons that follow I prefer and adopt the first approach detailed in the three preceding scenarios. I accept the Applicant’s submission that the form of the Housing SEPP, the context within which s 19 sits within the instrument and the lack of clear legislative intent for both provisions to apply support a conclusion that the provision of s 19(e) and (f) are the only applicable non-discretionary standards for the provision of parking spaces under SEPP Housing. Further, I find that the development application meets the applicable non-discretionary. I am therefore constrained by s 4.15(2) of the EPA Act to not take those standards into further consideration in determining the development application, nor can they be a reason in support of refusal of the development or impose a condition of consent which seeks a more onerous standard. In my view the Respondents submissions seeking additional parking provision for visitor parking is contrary to the limitation on the consent authority’s discretion at s 4.15(2) of the EPA Act. My reasoning is that:

70. It is necessary to have regard to the context and purpose of the provision in order to determine its meaning and effect: Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 at [42]-[45].

71. The structure of SEPP Housing is to contain the non-discretionary development standards applicable to the different forms or types of housing in separate chapters. The second tier of controls are then separate divisions. For example, in Ch 2 ‘Affordable Housing’ there are Divisions for infill affordable housing, boarding houses, supportive accommodation etc. Whilst SEPP Housing contains provisions for the delivery of all forms of housing in NSW, there are only specific provisions directed to the facilitation of the delivery of affordable housing in Ch 2. For example, in s 15A the objective of the Infill affordable housing provisions (Pt 2, Div 1) is to ‘facilitate the delivery of new in-fill affordable housing to meet the needs of very low, low and moderate income households.’ In contrast, the provisions of Ch 4 of SEPP Housing addresses the design of all forms of residential apartment development, irrespective of whether that development contains affordable housing. s 142 details that the aim of Ch 4 is to improve the design of residential apartment development in NSW.

72. When Ch 2 is read as a whole, each of the types of affordable housing have separate sections detailing the applicable non-discretionary development standards. For example, those standards appear at s 24 for boarding houses and at s 42 for social housing. If it was correct to say s 148 applied in addition to the non-discretionary development standards for infill housing at s 12, the same could be argued for boarding houses or social housing which was delivered in a residential flat development form. There are no provisions in SEPP Housing that overtly require these disparate parts of the instrument to be read together.

73. Further, when consideration is given to the structure and text of Ch 5 ‘Transport oriented development’ and Ch 6 ‘Low and medium rise housing’ they also contain non-discretionary development standards that apply to development that is also residential apartment development at ss 157, 179 and 180. Again, whilst these provisions contain standards for parking, there is no indication that these standards apply in conjunction with the standards at s 148. For example, SEPP Housing at s 179 states:

179 Non-discretionary development standards—residential flat buildings and shop top housing in Zone R1 or R2

(1) This section applies to development for the purposes of residential flat buildings or shop top housing on land in a low and mid rise housing area in Zone R1 General Residential or R2 Low Density Residential.

(2) The following non-discretionary development standards apply—

(a) a minimum lot size of 500m2,

(b) a minimum lot width at the front building line of 12m,

(c) if no environmental planning instrument or development control plan that applies to the land specifies a maximum number of car parking spaces per dwelling—a minimum of 0.5 car parking spaces per dwelling,

(d) a maximum floor space ratio of 0.8:1,

(e) a maximum building height of 9.5m.

5. I accept that pursuant to s 13A of SEPP Housing (and similarly s 144(6)), development to which Ch 2 applies may also be residential development under Ch 4. However, I am not persuaded by Mr Seton’s submissions that the circumstance that a development constitutes both infill affordable housing under Division 1 of Chapter 2 and a residential flat building has the consequence that the non‑discretionary development standards applicable to the development application are those contained in both s 19 and s 148 of the SEPP Housing.There is no express textual reference in Pt 2 ‘Development for affordable housing’ of SEPP Housing indicating that, in order to determine the non-discretionary development standards applicable to development to which the Division applies, it is necessary to have regard to other Parts or Divisions of the instrument.

6. In my view if the non-discretionary development standards in s 19 were intended to be applied in conjunction with the non-discretionary development standards at s 148, a clear reference would be required in the instrument. There is no such reference.

7. This approach is further supported by the terms of s 19 of SEPP Housing which does contain such a clear reference indicating the interrelationship between provisions. In subcl (3), s 19 does contain a clear carve out in for the non-discretionary development standards at ss (2)(c) and (d) for development to which Ch 4 applies. The effect of this ‘carve out’ in ss 19(2)(c) and (d) for residential flat development that Ch 4 applies is that the non-discretionary standards for deep soil zones and the solar access requirements for living rooms and private open spaces in s 19 do not apply to residential apartment development. There is no such text which seeks to indicate that the non-discretionary development standards in s 19 apply in conjunction with other provisions in SEPP Housing.

8. The effect of Mr Seton’s submissions—that the non-discretionary development standards for parking are determined by the combined operation of ss 19(e) and (f) and s 148(2)(a)—would be to increase parking requirements for developments delivered under Div 1 of Ch 2. That outcome contrasts with the operation of s 15C, which confines the availability of additional floor space and height to circumstances where the development is located in an accessible area, is permissible, and includes a minimum component of affordable housing. When read in the context of ss 16, 18, the non-discretionary development standards detail the parameters that must be delivered as a minimum where the statute provides additional height and FSR where a development delivers affordable housing on sites in proximity to public transport. The effect of the provisions, when read together is to limit the parking provision while concurrently permitting additional height and FSR where affordable housing is delivered.

9. In my view it is contrary that the intent of ‘non-discretionary development standards’, and the limitation on the merit discretion of the consent authority with relation to the matters to which those standards apply, for these standards not to cover the field and to be unclear in their requirements.

10. I adopt and prefer the submissions of Mr Farland detailed at [61].

11. I find that the development application meets the applicable non-discretionary development standards in s 19 of SEPP Housing.

Do the impacts of the development on the on street parking warrant refusal?

68. Putting aside the legal issue of which parking rates are applicable to the proposed development application, the traffic engineering experts address onsite parking in the vicinity of the site in their joint report. The experts consider the Applicant’s on street car parking survey and analysis of current on street parking availability in the vicinity of the site (parking survey), and the forecast impact to on street parking arising from the proposed development.

69. The Applicant undertook four days of surveys:

(a) Thursday 16 October 2025 (200m walking distance) (b) Saturday 18 October 2025 (200m walking distance) (c) Saturday 25 October 2025 (400m walking distance) (d) Monday 27 October 2025 (400m walking distance).

70. The Applicant undertook a parking survey of a total of 289 publicly accessible on street car parking spaces within the 200-metre walking catchment of the site. That parking survey data can be summarised as follows:

71. Then the Applicant undertook a broader survey within a 400m catchment of the site. The expanded study area recorded a total supply of 573 publicly accessible on street parking spaces. That parking survey data can be summarised as follows:

72. Mr Lo argues that the two parking surveys undertaken demonstrates that ample spare car parking capacity is available within immediate walking distance of the site. The data confirms that, on average, at least 88 and 99 spaces were available for visitors’ use within 200m of the site during the busiest day time periods of both survey days.

73. Mr McCarthy argues that in considering the impact of the non-provision of visitor parking, the on street parking spaces surveyed should exclude any spaces that allow parking for less than an hour. Applying this approach, he argues that the available spaces are:

(a) Thursday 16 October 2025 (200m walking distance:

(i) Minimum available spaces of 51 (18% spare, supply of 278) at 11:15am.

(b) Saturday 18 October 2025 (200m walking distance)

(i) Minimum available spaces of 81 (28% spare, supply of 288) occurring at 1:15pm.

(c) Saturday 25 October 2025 (400m walking distance):

(i) Minimum available spaces of 139 (24% spare, supply of 561) occurring at 10am.

(d) Monday 27 October 2025 (400m walking distance):

(i) Minimum available spaces of 80 (15% spare, supply of 525) occurring at 2:30pm.

74. Even applying this more conservative approach, Mr McCarthy’s analysis indicates that, when assessed on merit, the proposed development would have no material impact on the availability of on street parking.

75. Having considered the evidence from the traffic experts engaged in the proceedings I am not persuaded that there is a detrimental impact on parking provision which would support the refusal of the application.

Conditions of consent.

76. The Respondent prepared a set of conditions of consent for the development application. The Applicant seeks to amend Condition 16(d) of those conditions to provide for the staging of the payment of development contributions.

Existing Consent

77. The existing consent allows for the staging of development contributions at Condition 16(d) as follows:

…

(d) Timing of Payment and detail of Deferred Development Contributions

The Total Development Contributions are to be paid as follows:

- 20% of the Total Development Contributions must be paid and receipted by the Council prior to the issue of any construction certificate equating to a numeric amount of $230,112.45 (subject to indexation and payment of additional overdraft interest in accordance with this condition);

- 20% of the Total Development Contributions must be paid as a Deferred Development Contribution and receipted by the Council within 18 months of the construction certificate equating to a numeric amount of $230,112.45 (subject to indexation and payment of additional overdraft interest in accordance with this condition);

- 60% of the Total Development Contributions must be paid as a Deferred Development Contribution and receipted by the Council prior to the issue of any occupational certificate equating to a numeric amount of $690,337.33 (subject to indexation and the payment of additional overdraft interest in accordance with this condition).

78. Total Development Contributions is a term that is defined in the existing consent as a total of $1,150,562.21 with the imposition of indexing pursuant to Condition 16(a).

79. ‘Deferred Development Contributions’ is a term that is defined in the existing consent as follows:

16(c) ‘Deferred Development Contribution’ means any portion of the Total Development Contributions that is paid after the issue of a Construction Certificate pursuant to Condition 16(d) and 16A. Interest calculated in accordance with the requirements set out in Section 94 Contribution Plan No 8 Kogarah Town Centre and Section 94 Contribution Plan No 9 Kogarah Council Libraries for interest on deferred payments.

80. The existing consent provides for a covenant to be placed on the title of the land the subject of the consent to secure the payment of the Deferred Development Contributions. That condition states:

‘16A Covenant Securing Payment of Deferred Development Contributions

A covenant pursuant to s88E of the Conveyancing Act 1919 is to be registered on the title(s) to the land the subject of this consent prior to the issue of any construction certificate, on the following terms, securing the payment of any Deferred Development Contributions to be paid after the issue of the Construction Certificate:

Terms

In relation to the development approved by the consent to DA 2019/0319 (the ‘Consent’):

(i) The registered proprietor/s of the lot(s) hereby burdened will pay to Council the Deferred Development Contributions set out in condition 16 of the consent as follows:

(a) 20% of the Total Development Contributions must be paid to and receipted by Council within 18 months of the issue of the Construction Certificate; and

(b) the remaining 60% of the Total Development Contributions must be paid to and receipted by the Council prior to the issue of any Occupation Certificate.

(ii) this covenant is to be removed from the title of the lot(s) hereby burdened following the payment of the Deferred Development Contributions set out in (i) above.

(iii) The development approved by the Consent must not be occupied until the payments required in clause (i) hereof is paid.’

Agreed modifications to Condition 16 and 16A

81. The following modifications to conditions 16, by the grant of consent to the development application, are agreed between the parties:

…

82. Further, the parties agree to the deletion of Condition 16A of the existing consent, extracted at [78], which provides for a covenant over the land to secure the payment of the Deferred Development Contributions.

The competing arguments

83. Due to a renumbering of conditions, the development consent condition referrable to the levying of development contributions in the proposed consent is Condition 17.

84. The Applicant seeks for the conditions of consent for this development application to adopt the same proportional, staged, approach to the payment of the Total Development Contributions as applies in the existing consent. They submit that to do so will maintain consistency with the timing of payment of the development contributions imposed by the conditions of the existing consent,

85. They seek for the Court to impose the following as Condition 17(b):

(b) Timing of Payment (the Applicant’s proposed Condition 16(b))

The Total Development Contributions set out in the table at Condition 16 and as indexed in accordance with Condition 16 are to be paid as follows:

• 20% of the Total Development Contributions must be paid and receipted by Council prior to the issue of any Construction Certificate equating to a numeric amount of $341,899.07 (subject to indexation and the payment of additional overdraft interest in accordance with this condition);

• 20% of the Total Development Contributions must be paid as a Deferred Development Contribution and receipted by Council within 18 months of the Construction Certificate being issued equating to a numeric amount of $341,899.07 (subject to indexation and the payment of additional overdraft interest in accordance with this condition); and

• 60% of the Total Development Contributions must be paid as a Deferred Development Contribution and receipted by Council prior to the issue of any Occupation Certificate equating to a numeric amount of $1,025,697.33 (subject to indexation and the payment of additional overdraft interest in accordance with this condition).

86. In the alternative the Respondents seeks the Court to impose the following as Condition 17(b):

(b) Timing of Payment (the Respondent’s proposed Condition 17(b))

The contribution must be paid and receipted by Council prior to the release of the Construction Certificate.

87. The Respondent argues that Condition 17(b) should be imposed in accordance with the Georges River Council Local Infrastructure Contributions Plan 2021 (GRLIC Plan 2021), which is applicable to the proposed development. The Respondent notes that GRLIC Plan 2021 was adopted after the grant of the existing consent, but as the development application was lodged on 18 November 2024 the GRLIC Plan 2021 applies to the development application. Further, they argue that Parts 6.3 and 6.4 of the GRLIC Plan 2021 provides that contributions for this form of development are to be paid prior to the release of a construction certificate and further that “Council will not accept the deferred or periodic payment of any monetary contribution required under this Plan”.

88. Finally, the Respondent argues that the Applicant has not provided any satisfactory justification for the staging of payments.

Findings

89. I accept and prefer the reasoning of the Respondent in relation to the form of condition that is appropriate to be imposed on the consent to ensure the timing of payment of the applicable Total Development Contributions. My reasoning follows.

90. Firstly, the application is a development application, as opposed to a modification application, and is required to be assessed and determined under ss 4.15 and 4.16 and pursuant to s 4.17(h)(iii) of the EPA Act can be subject to conditions of consent seeking contributions towards provision or improvement of amenities or services is authorised by ss 7.11 and 7.12 of the EPA Act. The assessment, determination and imposition of conditions is subject to the provisions of the matters listed at s 4.15(1)(a) of the EPA Act that apply at the time. In this matter the Applicant, and the subject site, have the benefit of the provisions of the Housing SEPP that were not in force at the time of the existing consent. However, they are also subject to the GRLIC Plan 2021 which has come into force since the grant of the existing consent.

91. Secondly, it is appropriate for the Court to give weight to the provisions of the GRLIC Plan 2021, in particular Part 6.4 which states:

6.4 Deferred or Periodic Payments

Council will not accept the deferred or periodic payment of any monetary contribution required under this Plan.

3. In my view it is clearly stated in the GRLIC Plan 2021 that to the extent it was the practice of the Council to stage or defer payment of the applicable Total Development Contributions applicable to a development, they were changing that practice by the adoption of the policy. I am not persuaded by the Applicant’s argument that a variation to Part 6.4 of the GRLIC Plan 2021 is warranted in this case.

4. Thirdly, the Total Development Contributions deferred in the form of the Applicants Condition 17(b) are no longer proposed to be protected by covenant over the property. The agreed deletion of Condition 16A from the existing consent removes a form of security for the Respondent’s that the staged payment of the development contributions will be made.

5. Finally, I am satisfied that delay in the payment of contributions is not in the public interest in circumstances where the Respondent has a detailed contributions plan (GRLIC Plan 2021) that seeks to provide infrastructure to support the increased development density being experienced in the locality.

6. Accordingly, I impose the following Condition 17(b):

(b) Timing of Payment

The contribution must be paid and receipted by Council prior to the release of the Construction Certificate.

Development consent should be granted.

91. For the reasons expressed above, each of the contentions raised by the Respondent on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused.

92. The proposed development is permissible on the site, the jurisdictional preconditions have been met, and it complies with the relevant development controls. Having considered the evidence from the experts engaged in the proceedings I am not persuaded that there are any merit reasons which would support the refusal of the application. Further, I am satisfied that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent.

93. It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.

Orders

94. The Court orders that:

95. The appeal is upheld

96. Development application DA/2024/0544 for alterations and additions to the approved residential flat building pursuant to Development Consent No. DA2019/0319 granted by the Land and Environment Court on 15 May 2020, including construction of 5 additional storeys, incorporation of 4 Victoria Street as ground floor communal open space, various internal reconfigurations and amended façade design resulting in a 16-storey residential flat building containing 95 apartments (including 17 affordable units) over 72 basement parking spaces at 2-4 Victoria Street, Kogarah (Lot 3 DP 1265877 and Lot 1 DP 171055) is determined by the grant of consent subject to the conditions in Annexure A.

97. Exhibits are returned with the exception of Exhibit 1, 4 and A)

D Dickson

Commissioner of the Court

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Annexure A (641 KB, pdf)