Background
Kogarah Investments appealed the deemed refusal of its development application for alterations and additions to an already approved 10-storey mixed-use building at 1 Stanley Street, Kogarah. The amended proposal added three storeys, increased apartments from 95 to 106, provided 19 affordable-housing units for at least 15 years, increased parking from 85 to 116 spaces, and made associated internal and external changes.
The proposal relied on affordable-housing incentives in the State Environmental Planning Policy (Housing) 2021. Those incentives allowed increased floor-space ratio and building-height standards, but the amended building still exceeded the applicable 42.9-metre height limit by up to 4.78 metres, or 11.11%.
The Court’s Holding
Following a conciliation conference, the parties agreed that consent should be granted subject to conditions. Commissioner Walsh held that the agreed outcome was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The Commissioner found the relevant statutory and planning preconditions had been met, including those concerning contamination, classified-road access and noise, affordable housing, apartment design, stormwater, essential services, design excellence, landscaping and airport airspace. The Court also accepted that the applicant had justified the height-standard contravention under cl 4.6 of the Georges River Local Environmental Plan 2021. The appeal was upheld and consent granted for the amended application. The applicant was ordered to pay the Council $10,000 in agreed thrown-away costs caused by the amendments.
Key Takeaways
- A conciliated Class 1 agreement must be implemented if it is an outcome the Court could lawfully make; the Court need not conduct the full merits assessment that a contested hearing would require.
- Affordable-housing bonuses did not eliminate the need to justify the remaining building-height breach under the local planning instrument.
- The consent requires the identified affordable-housing apartments to be managed by a registered community housing provider for at least 15 years from the occupation certificate.
Why It Matters
The decision illustrates how affordable-housing incentives can support increased density in accessible urban locations, while leaving local height controls operative to the extent a proposal exceeds the bonus standard.
It also underscores the limited but essential judicial task in a s 34 conciliation outcome: confirming jurisdictional and statutory preconditions, rather than resolving every contested planning merit or objection.