Abrahim v Georges River Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Al Abrahim (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
D Loether (Solicitor) (Applicant)
J Smith (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s): 2024/474202

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing house and the construction of an attached dual occupancy with basement garage, and Torrens title subdivision, at 10 Dalkeith Street, Sans Souci. The development application was lodged with Georges River Council on 27 September 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 26 June 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on the same date, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include a reduction in overall height, the introduction of privacy measures to prevent overlooking and increased landscaping.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A and [Error! Reference source not found.] below. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

6. The development works are for the purposes of a dual occupancy, which is a permissible use in the R4 High Density Residential zone in which the site is located, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP).

7. The proposed development complies with the applicable development standards that apply pursuant to the GRLEP, including minimum subdivision lot size for dual occupancies (cl 4.1A), minimum lot size and width for dual occupancy developments (cl 4.1B), maximum height of building (cl 4.3), floor space ratio (cl 4.4A(4)) and landscaped area (cl 6.12(5)(f)).

8. The development is located adjacent to a local heritage items and the effect of the development on the heritage significance of the heritage items has been considered. The development application was accompanied by a Statement of Heritage Impact dated 2 September 2024, and nothing arises from cl 5.10 of the GRLEP that precludes the grant of consent.

9. The development application includes earthworks for the provision of the basement garage. Based on the Geotechnical Investigation Report dated 13 March 2025, I have considered the matters set out in cl 6.2(3) of the GRLEP.

10. Based on the landscape plans dated 19 June 2025, I am satisfied of the matters in cl 6.12(4) of the GRLEP.

11. The site falls within the Sydney Harbour Catchment, such that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the stormwater drainage plans dated 19 June 2025, and the letter from Raft designs dated 23 June 2025, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2).

12. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 13 August 2024. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

13. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

14. The development application was notified for a period of 14 days from 28 October 2024, and two written submissions were received. I have considered the issues raised in those submissions, and I note the parties’ agreement that amendments to the application have addressed those issues.

15. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

17. The Court notes:

18. That the Respondent, Georges River Council, as the relevant consent authority has agreed, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2024/0447 in accordance with the documents listed below:

| TAB | DOCUMENT | | 1 | Architectural Plans, prepared by Building Architecture Pty Ltd | | | Drawing No. | Drawing | Revision | Date | | | A000 | Cover Page & Project Summary | 4 | 18/06/2025 | | | A001 | Perspective Views | 4 | 18/06/2025 | | | A002 | Site Analysis | 4 | 18/06/2025 | | | A003 | Streetscape Character Analysis | 4 | 18/06/2025 | | | A004 | Demolition Plan | 4 | 18/06/2025 | | | A005 | Waste Erosion & Constr. Management Plan | 4 | 18/06/2025 | | | A006 | Deep Soil Plan | 4 | 18/06/2025 | | | A007 | Site Subdivision | 4 | 18/06/2025 | | | A008 | Site Plan | 4 | 18/06/2025 | | | A009 | Bulk Excavation Plan | 4 | 18/06/2025 | | | A010 | Bulk Excavation Sections | 4 | 18/06/2025 | | | A100 | Basement Floor Plan | 4 | 18/06/2025 | | | A101 | Ground Floor Plan | 4 | 18/06/2025 | | | A102 | Level 1 Floor Plan | 4 | 18/06/2025 | | | A103 | Roof Plan | 4 | 18/06/2025 | | | A200 | Side Elevations | 4 | 18/06/2025 | | | A201 | Elevations & Section C-C | 4 | 18/06/2025 | | | A300 | Section A-A & Section B-B | 4 | 18/06/2025 | | | A301 | Driveway Long Section | 4 | 18/06/2025 | | | A700 | GFA Plan | 4 | 18/06/2025 | | | A750 | Shadow Diagrams December 21 | 4 | 18/06/2025 | | | A751 | Shadow Diagrams June 21 | 4 | 18/06/2025 | | | A800 | Finishes Schedule | 4 | 18/06/2025 | | | A810 | Window & Door Schedules | 4 | 18/06/2025 | | | A900 | Pool Details | 4 | 18/06/2025 | | | A950 | Notification Plan | | | | 2 | Landscape Plans, prepared by Studio Botanica | | | Drawing No. | Drawing | Revision | Date | | | 01 | Cover page | E | 19/06/2025 | | | 10 | Landscape Plan | E | 19/06/2025 | | 3 | Stormwater Engineering Plans, prepared by RAFT Desings | | | Drawing No. | Drawing | Issue | Date | | | STO80524.1/6 | Basement Stormwater Plan | 3 | 19/06/2025 | | | STO80524.2/6 | Ground Stormwater Drainage Plan | 3 | 19/06/2025 | | | STO80524.3/6 | Basement Stormwater Plan | 3 | 19/06/2025 | | | STO80524.4/6 | Basement Stormwater Plan | 3 | 19/06/2025 | | | STO80524.5/6 | Basement Stormwater Plan | 3 | 19/06/2025 | | | STO80524.6/6 | Basement Stormwater Plan | 2 | 13/06/2025 | | | E-080524 | Erosion Control Plan | 1 | 19/06/2025 | | 4 | Site Survey, prepared by Geometra Consulting, dated 22 May 2025 | | 5 | Geotechnical Investigation, prepared by Australian Geoenviro, dated 13 March 2025 | | 6 | Statement of Access, prepared by Buildum Architecture, Revision A, dated 1 May 2025 | | 7 | Stormwater Site Calculations Letter, prepared by Raft Designs, dated 23 June 2025 | | 8 | Use of Temporary or Batter Slopes Letter, prepared by Raft Designs, dated 24 June 2025 | | 9 | Ramp Design Model, undated | | 10 | Vehicle Access Letter, prepared by Terraffic Pty Ltd, dated 24 June 2025 | | 11 | Schedule of Amendments, dated 6 June 2025 |

9. The Court orders that:

10. The appeal is upheld.

11. Development Application DA2024/0447 for demolition, construction of a dual occupancy development and Torrens Title subdivision, on land identified as Lot 12 in DP 7364, also known as 10 Dalkeith Street, Sans Souci, is determined by the grant of development consent subject to the conditions of consent contained at Annexure A.

J Gray

Commissioner of the Court

Annexure A (357 KB, pdf)

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