TYD Kogarah Holdings Pty Ltd v Georges River Council

Cases Cited: Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015)

Category: Principal judgment

Parties: TYD Kogarah Holdings Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor)(Applicant)
D Havadjia (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/216820

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application MOD2024/0006 seeking approval to modify development consent DA2018/0137 for the demolition of existing structures and construction of a twelve (12) storey mixed use building containing 54 apartments, 2 commercial units and 3 basement parking levels (Consent) at 7 – 11 Derby Street Kogarah legally described as Lots A and B in DP 107114 and CP/SP498 (the Site).

2. The modification to the Consent can be summarised to include an additional basement level, provision of columns, revised unit layouts and communal open space, changes to finished floor levels, addition of ground floor walkway, addition of solar panels, and revised window locations and privacy screens.

3. On 20 November 2024, the parties participated in a conciliation conference pursuant to section 34 of the Land and Environment Court Act 1979 (LEC Act), at which time the conciliation conference was adjourned to 13 December 2024 and ultimately terminated.

4. The Court arranged a further conciliation conference under s 34(1) of the LEC Act between the parties, over which I presided on 11 April 2025. 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 exercising the function under s 4.55 of the EPA Act to uphold the appeal and approve the modification of a development consent subject to conditions.

5. As a result of discussions at the earlier conciliation conference, the parties reached an in-principle agreement, and the Applicant has prepared an Amended Modification Application consisting of a range of further and amended material as listed at [20]. In summary, the changes proposed by the Amended Modification Application include (but not limited to) the following:

6. Added street planting on Derby Street;

7. Introduction of speed hump and convex mirror;

8. Reduction in height and increase of width of carpark ventilation;

9. Introduction of bin collection locations in Kensington Lane; and

10. Introduction of outdoor area in garden area.

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

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note provided to the court.

13. The Applicant is the owner of the Site: s 98, Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

14. The parties agree that the contents of the Amended Modification Application satisfy ss 100 and 102 of the EPA Regulation.

15. Whilst the Applicant has not elected for the Amended Modification Application to be treated as integrated development, comments from WaterNSW pursuant to the Water Management Act 2000 are separately required. On 20 March 2024, a referral response was received from WaterNSW which sought the further information and on 2 December 2024, the Respondent referred the Amended Modification Application to WaterNSW for comments. On 20 March 2025, WaterNSW provided general terms of approval (GTAs) in relation to the proposed dewatering of the basement and the GTAs been incorporated into the agreed conditions of consent.

16. In order to comply with s 102 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the Modification Application is accompanied by a Design Verification Statement prepared by Nordon Jago Architects, dated 13 December 2024 which includes:

17. A statement confirming that the qualified designer designed or directed the design of the development; and

18. Explains how the design quality principles are achieved, how the objectives in Parts 3 and 4 of the Apartment Design Guide have been achieved.

19. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) came into force and applies to the Site where Schedule 1 of the Sustainable Buildings SEPP contains standards for energy and water use relative to their climate zones. The development is a BASIX affected building that falls within the meaning of a BASIX affected building in accordance with Schedule 7 of the EPA Regulation and in that regard, A BASIX Certificate, NatHERS Certificate and BASIX Commitments and stamped plans have been prepared as part of Class 1 Application and can be found at Tabs 13 and 14 of the Class 1 Application.

20. Under the provisions of s 4.55(2) of the EP&A Act, the following applies:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be*.*

Subsections (1) and (1A) do not apply to such a modification.

14. The proper approach to the application of s 4.55(2) of the EPA Act is set out by Preston CJ in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [26] and [27]:

“26 … The test in s 4.55(2)(a) requires a simple comparison of the two developments, the development as modified and the development as originally approved: Arrage v Inner West Council [2019] NSWLEC 85 at [24]; Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 at [112]. This comparison can involve “an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context”: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56]. But the comparison required by s 4.55(2)(a) remains a holistic one of the two developments being compared – the modified development and the originally approved development. The opinion of satisfaction that s 4.55(2)(a) requires is that the two developments being compared are substantially the same development, not that either the quantitative features or the qualitative features of the two developments are substantially the same.

27. That is not to say that the decision-maker cannot, in comparing the two developments, assess the differences in the quantitative and qualitative features of the two developments. Such an assessment might be of assistance in undertaking the comparison between the two developments. But this assessment can not displace the test in s 4.55(2)(a): Feldkirchen Pty Ltd v Development Implementation Pty Ltd at [112].”

15. The parties agree that the Amended Modification Application achieves the requirements of s 4.55(2), being substantially the same as the originally approved development and is demonstrated to be consistent with this provision and relevant case law, as set out above. This is summarised below as extracted from page 8 of the Statement of Environmental Effects filed at Tab 3 of the Class 1 Application:

16. The additional basement car park level will ensure the development continues to comply with the required car parking and storage provisions following changes to ensure services can be appropriately provided. These changes have not changed the use of the building and do not contribute or change to the building’s visible scale or bulk.

17. Changes to finished floor levels and an insertion of a lift overrun, present as a minor observable height increase, being a total height of 42.87m. These changes ensure the required services can be provided on the site and do not substantially or adversely increase impacts of overshadowing, privacy or bulk / scale.

18. Open spaces and landscaping have been redesigned, presenting minor detail changes. This does not alter the intended use of these areas by the residents and will not adversely impact amenity of future residents.

19. Proposed modifications largely include material/finish and layout changes, including new features such as balconies and relocation of internal rooms and features, which facilitate required service provision, increase functionality and amenity and lightly alter visual appearance and articulation. These changes retain the residential use of the development and only make improvements to the overall visual appearance and contribution to the area.

20. The modifications are to accommodate various service requirements and easements for the original development.

21. The modification is in essence substantially the same as the Approved Development and it is considered that the amendment will not generate any significant adverse environmental impacts in addition to those previously assessed and approved. Conversely, the proposed modification will implement required services provision that was excluded from the previous approval.

22. For these reasons I have formed the positive opinion that the Proposed Modification is substantially the same as the originally granted consent, as required by the provisions of section 4.55(2) of the EPA Act.

23. 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.

24. 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.

Notations:

20. The Court notes that

21. the Respondent has approved, pursuant to section 113 of the Environmental Planning and Assessment Regulation 2021, the amendment of Modification Application No. MOD2024/0006 in accordance with the following amended plans and documents (the Amended Modification Application):

| TAB | DOCUMENT | DATE | | 1. | Architectural Plans (Up to Rev G), prepared by Nordon Jago Architects • DA.001 (Rev G) - Cover Page, dated 20 December 2024 • DA.010 (Rev E) – Site Plan, dated 20 December 2024 • DA.099 (Rev B) – Basement B4 (Additional Level), dated 29 August 2024 • DA.100 (Rev B) – Basement B3, dated 29 August 2024 • DA.101 (Rev B) – Basement B2, dated 29 August 2024 • DA.102 (Rev C) – Basement B1, dated 28 November 2024 • DA.103 (Rev E) – Level 0 (GF), dated 13 December 2024 • DA.104 (Rev B) – Level 1, dated 29 August 2024 • DA.105 (Rev D) – Level 2, dated 28 November 2024 • DA.106 (Rev B) – Level 3 & 4, dated 29 August 2024 • DA.107 (Rev B) – Level 5, dated 29 August 2024 • DA.108 (Rev B) – Level 6 to 9, dated 29 August 2024 • DA.109 (Rev D) – Level 10, dated 28 November 2024 • DA.110 (Rev B) – Level 11, dated 29 August 2024 • DA.111 (Rev E) – Level 12 (roof), dated 28 November 2024 • DA.112 (Rev C) – Roof Top, dated 28 November 2024 • DA.150 (Rev B) – Adaptable Units, dated 29 August 2024 • DA.170 (Rev D) – GFA Plans, dated 20 December 2024 • DA.171 (Rev D) – Area Plan - Landscaping, dated 13 December 2024 • DA.200 (Rev D) – Elevations – Sheet 1 (NE – Derby St), dated 13 December 2024 • DA.201 (Rev D) – Elevations – Sheet 2 (SW- Kensington Ln), dated 13 December 2024 • DA.202 (Rev D) – Elevations – Sheet 3 (NW), dated 13 December 2024 • DA.203 (Rev D) – Elevations – Sheet 4 (SE), dated 13 December 2024 • DA.204 (Rev D) – Section – Sheet 1, dated 20 December 2024 • DA.205 (Rev D) – Section – Sheet 2, dated 20 December 2024 • DA.206 (Rev D) – Section – Sheet 3, dated 20 December 2024 • DA.207 (Rev C) – Section – Sheet 4, dated 20 December 2024 • DA.409 (Rev A) – Kensington Lane Shadows (Winter), dated 29 August 2024 • DA.410 (Rev B) – Solar View Diagrams, dated 28 November 2024 • DA.411 (Rev B) – Solar Compliance Plans, dated 28 November 2024 • DA.415 (Rev A) – Communal Open Space Plans, dated 29 August 2024 • DA.430 (Rev A) – Shadow Diagrams (Existing) – Jun 21 – 9am, dated 29 August 2024 • DA.431 (Rev A) – Shadow Diagrams (Existing) – Jun 21 – 12pm, dated 29 August 2024 • DA.432 (Rev A) – Shadow Diagrams (Existing) – Jun 21 – 3pm, dated 29 August 2024 • DA.433 (Rev A) – Shadow Diagrams (Approved) – Jun 21 – 9am, dated 29 August 2024 • DA.434 (Rev A) – Shadow Diagrams (Approved) – Jun 21 – 12pm, dated 29 August 2024 • DA.435 (Rev A) – Shadow Diagrams (Approved) – Jun 21 – 3pm, dated 29 August 2024 • DA.436 (Rev A) – Shadow Diagrams (S455) – Jun 21 – 9am, dated 29 August 2024 • DA.437 (Rev A) – Shadow Diagrams (S455) – Jun 21 – 12pm, dated 29 August 2024 • DA.438 (Rev A) – Shadow Diagrams (S455) – Jun 21 – 3pm, dated 29 August 2024 • DA.450 (Rev A) – SEPP 65 Natural Ventilation Diagrams, dated 29 August 2024 • DA.451 (Rev B) – Typical Ceiling Heights, dated 28 November 2024 • DA.452 (Rev A) – Detail Sections Showing Ceiling Heights, dated 28 November 2024 • DA.500 (Rev A) – Evacuation Diagram – Sheet 1, dated 29 August 2024 • DA.501 (Rev A) – Evacuation Diagram – Sheet 2, dated 29 August 2024 • DA.502 (Rev A) – Evacuation Diagram – Sheet 3, dated 29 August 2024 • DA.900 (Rev C) – Building Finishes – Sheet 1, dated 28 November 2024 • DA.901 (Rev C) – Building Finishes - Sheet 2, dated 28 November 2024 • DA.902 (Rev A) – Materials Palette, dated 28 November 2024 • DA.912 (Rev A) – Building Separation Analysis, dated 29 August 2024 • DA.950 (Rev C) – Proposed Envelopes & Height Limit, dated 20 December 2024 • DA.960 (Rev A) – Bulk Excavation Plan, dated 29 August 2024 | Various dates | | 2. | Landscape Plans (Rev F) prepared by Conzept Landscape Architects • Hardscape Plan – L0 • Landscape Plan – L0/Ground Floor • Landscape Plan – L2 & L10 • Landscape Plan – L12 • Landscape Calculation – Soil Depth • Elevation – Derby Street • Landscape Section • Details 3 • Street Tree Details • Details • Planting Palettes • Specification | 19 December 2024 | | 3. | Design Verification Statement prepared by prepared by Nordon Jago Architects | 13 December 2024 | | 4. | Hebel Power Pattern Façade Plans | - | | 5. | Email from Mez Ahmadi to Robert Goodall re Hebel Power Pattern Panel availability | 13 December 2024 | | 6. | Letter from CBS Engineers regarding location of car park intake | 11 December 2024 | | 7. | Structural Statement prepared by ACSES | 12 December 2024 |

2. the Applicant has filed the Amended Modification Application with the Court.

Orders:

21. The Court orders:

22. The appeal is upheld.

23. Modification Application No. MOD2024/0006 to modify development consent DA2018/0137 to include an additional basement level, provision of columns, revised unit layouts and communal open space, changes to finished floor levels, addition of ground floor walkway, addition of solar panels, and revised window locations and privacy screens at 7-11 Derby Street, Kogarah is approved.

24. Development Consent No. DA2018/0137 is modified in the terms set out in Annexure A.

25. Development Consent No. DA2018/0137 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A

Amended Annexure B

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Amendments

23 April 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), a corrected version of the conditions of consent are uploaded as “Amended Annexure B” with the General Terms of Approval of the relevant approval authorities (being Airspace Protection and WaterNSW) included.