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[2025] NSWLEC 1164
General information, not legal advice.
Land and Environment Court (NSW)
2025-03-19
Espinosa C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Azer v Georges River Council [2025] NSWLEC 1164
Hearing dates: Conciliation conference on 14 March 2025
Date of orders: 19 March 2025
Decision date: 19 March 2025
Jurisdiction: Class 1
Before: Espinosa C
Decision: The Court orders:
(1) The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendment of the application to reply on the documents at paragraph 2 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500 within 28 days from the date of these orders being made.
(2) The appeal is upheld.
(3) Development Application DA2023/0512 (DA) for Demolition of existing development, and the construction of a two storey 76 place centre-based childcare facility with 20 parking spaces, tree removal and associated landscaping, at 78 Bonds Road, Peakhurst NSW 2210 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.
Catchwords: DEVELOPMENT APPEAL – centre-based child care facility - conciliation conference – agreement between the parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979, Pt 4, ss 4.15, 4.16, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Local Land Services Act 2013, Pt 5B, s 60O
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.3, 6.11, 6.12,
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, ss 2.7, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3, ss 2.48, 3.22, 3.26
Texts Cited: Education and Care Services National Regulations
Georges River Council Community Participation Plan
Category: Principal judgment
Parties: Michael Wagih Fakhry Azer (First Applicant)
FLDC Pty Ltd ACN 096 870 281 (Second Applicant)
Georges River Council (Respondent)
Representation: Counsel:
A Boskovitz (Solicitor)(Applicant)
H McIvor (Solicitor)(Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Georges River Council (Respondent)
File Number(s): 2024/56948
Publication restriction: No
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA2023/0512 seeking consent for the demolition of existing structures and driveways and paved areas and the construction of a one storey 76 place centre based childcare centre with basement parking for 20 vehicles, landscaping and related structures (Proposed Development), at 78 Bonds Road, Peakhurst in the State of New South Wales legally described as Lot 4 in Deposited Plan 562915 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 March 2025. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
The Applicant amends the Proposed Development in response to the Statement of Facts and Contentions (SOFAC) filed on 13 March 2024 and an earlier conciliation conference held on 26 August 2024 presided by Commissioner O’Neill. The amendments change the Proposed Development by:
making amendments to the built form to be reduced in size,
amending the size and location of the basement to facilitate more deep soil areas
amending the layout to allow a more efficient use, to minimise impacts on adjoining neighbours and to otherwise ensure that the Proposed Development suits each of the streetscapes on which the Site is located.
amending the landscape plans to better utilise the space for the use of the children and provide for deep soil landscaping.
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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 various provisions contained within the Georges River Local Environmental Plan 2021, State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), State Environmental Planning Policy (Biodiversity and Conservation) 2021 **(**Biodiversity and Conservation SEPP), and the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) which are specified and addressed below. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.
The owners of the Site are Michael Wagih Fakhry Azer and Mariam Azer and they have prepared a letter of consent dated 14 January 2025 to the Applicant lodging a development application. The Court is satisfied that owner’s consent has been provided in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.
The amended material the subject of the agreement reached between the parties was sent to all objectors to the Proposed Development to inform all objectors of the second conciliation conference date of 14 March 2025 and Council’s intention to resolve the appeal by way of agreement pursuant to s 34 of the LEC Act. While no objectors have sought to address the court, one objector has asked for their submission to be provided to the Court. The Proposed Development was initially notified and advertised in accordance with the requirements of the Georges River Council Community Participation Plan from 1 December 2023 to 19 January 2024. Seven submissions were received as summarised at clause 5.3 of the Statement of Facts and Contentions filed 13 March 2024 and a copy of all the written submissions has been provided to the Court. In addition, an objector and a resident in support attended at the earlier conciliation conference and made submissions.
The parties agree that the Court can be satisfied that adequate notification has been undertaken.
The Site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP) and ‘centre-based childcare facilities’ are permissible with consent in the R2 zone.
The Site is in a long established urban area and previously contained a dwelling house. It has an existing supply of water, electricity and sewerage. In relation to (d) and (e) above, the parties’ agree that stormwater management can be undertaken on the site and that parking access by way of suitable vehicular access can be provided. Accordingly, the Court is satisfied that relevant essential services are available for the Proposed Development as required by cl 6.11 of the GRLEP.
The contamination status of the Site has been considered pursuant to s 4.6(1) of the Resilience and Hazards SEPP which precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated or potentially contaminated land and, if it is, that it is satisfied that the land is suitable (or will be made suitable after undergoing remediation) for the proposed use.
The Site is located within a residential area and the Site currently comprises of a two-storey clad dwelling. The Statement of Environmental Effects prepared by BMA Urban dated June 2023 (the SEE) and filed with the Class 1 Application at Tab 3 addresses the Resilience and Hazards SEPP at page 14 and concludes that “due to the existing and surrounding residential land uses, there is nothing to indicate that the site would be affected by soil contamination within the meaning of the contaminated land planning guidelines. … As such, the subject site is considered suitable in its current state for the proposed childcare use.” The SEE also includes an aerial photograph of the Site from 1943 depicting the existing dwelling.
For the reasons set out in the SEE and detailed above at [14], I am satisfied that a preliminary site investigation is not required notwithstanding the change of use of the Site proposed is for child care purposes: s 4.6(2) and (4), Resilience and Hazards SEPP.
The Proposed Development seeks the removal of the following trees: Tree 1, 1A, 1B, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, 13 14/15, 16, 17,18, 19, 20,22, 26, 27, 30, 31 & 32. The proposed tree removal has been the subject of an Arboricultural Impact Assessment prepared by Sam Allouche of NSW Trees Arboricultural Consultants dated 21 March 2023 and filed with the Class 1 Application and a further Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 7 August 2024 which is expressly listed in Condition 1 of the agreed Conditions of Consent at Annexure A.
Although Ch 2 of the Biodiversity and Conservation SEPP relates to the removal of vegetation in non-rural areas, s 2.7(1) of the Biodiversity and Conservation SEPP provides that a permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, s 60O or Pt 5B. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act.
Accordingly, the need for a permit pursuant to Ch 2 of the BC SEPP is not required where development consent under Pt 4 of the EPA Act is obtained. The proposed tree removal has been assessed by the Respondent in accordance with the terms of s 4.15 of the EPA Act. Accordingly, the terms of cl 6.12(4) of the GRLEP provides a jurisdictional prerequisite regarding landscaping as follows:
(4) Development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—
(a) allows for the establishment of appropriate plantings—
(i) that are of a scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and
(ii) that will maintain and enhance the streetscape and the desired future character of the locality, and
(b) maintains privacy between dwellings, and
(c) does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on the land or adjacent land, and
(d) enables the establishment of indigenous vegetation and habitat for native fauna, and
(e) integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.
The Applicant provided amended landscape plans prepared by Zenith Landscape Designs Issue C dated 9 December 2024, as part of the Amended Plans. These landscape plans are listed in Condition 1 of the agreed Conditions of Consent at Annexure A and compliance with them will re-establish canopy trees that make up for trees removed from the Site prior to the owners acquiring the Site as well as reintroduce appropriate species of planting in lieu of other trees being removed. The architectural plans have also been amended to allow for greater space for boundary planting to provide a buffer to allow for management of visual and acoustic privacy.
The parties agree that the Court can be satisfied that this provision of the GRLEP has been satisfied.
The Site is located within the Georges River Catchment but outside the Foreshores and Waterways Area in accordance with the maps associated with the Biodiversity and Conservation SEPP.
The provisions in Ch 6 of the Biodiversity and Conservation SEPP which includes jurisdictional prerequisites to be satisfied that relate to the water catchment contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to:
water quality and quantity;
aquatic ecology;
flooding;
recreation and public access; and
total catchment management.
To satisfy these jurisdictional prerequisites, the Applicant relies on the amended set of stormwater plans including appropriate DRAINS modelling. The Applicant states that the Court can be satisfied that:
the stormwater plans for the Proposed Development ensure that:
(a) the effect on the quality of water entering a natural waterbody will be beneficial, noting the existing lack of filtration and other treatment mechanisms on the Site; and (b) the impact on water flow in a natural waterbody will be minimised (s. 6.6(2) of the Biodiversity and Conservation SEPP).
(a) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (b) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (c) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (d) minimises any adverse impact on wetlands (s. 6.7 of the Biodiversity and Conservation SEPP).
(a) is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s. 6.8(1) of the Biodiversity and Conservation SEPP). The site is not located within the flood planning area and so is not considered to be flood liable land for purposes of s 6.8(2) of the Biodiversity and Conservation SEPP; (b) does not affect recreational land use or public access to and from foreshores or natural waterbodies given the Site’s location (s. 6.9 of the Biodiversity and Conservation SEPP); (c) is not likely to have an adverse environmental impact on any adjacent local government area (s. 6.10 of the Biodiversity and Conservation SEPP); and (d) is not located within a natural waterbody (6.11, Biodiversity and Conservation SEPP)
- In deciding whether to grant development consent for development, the consent authority must be satisfied that the development—
(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and
(b) includes, if practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development’s reliance on mains water, groundwater or river water, and
(c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and
(d) is designed to minimise the impact on public drainage systems.
The Applicant relies on amended stormwater plans as part of the Amended Plans together with a Stormwater Engineering Design Statement dated 13 March 2025 prepared by Lomford Engineers, which are considered to satisfy the requirements of cl 6.3(2) of the GRLEP.
The Site is not located within an area identified in the Flood Planning Area on the Flood Planning Map in the GRLEP. On this basis no further consideration of cl 5.21 of the GRLEP is required.
In relation to cl 6.1 ‘Acid Sulfate Soils’ of the GRLEP, the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulphate soils and cause environmental damage. Clause 6.1 of the GRLEP requires development consent for the carrying out of works on Class 5 land within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD, and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3, or 4 land.
The parties agree that:
the Site is located within a Class 5 area, as specified in the Acid Sulfate Soils Map to the GRLEP; and
the subject works are not works within 500m of adjacent Class 1, 2, 3 or 4 land below 5m AHD and by which the water table is likely to be lowered below 1m AHD; and
a preliminary assessment is therefore not required; and
there is unlikely to be any acid sulfate affectation.
Accordingly, the Court can be satisfied that the Proposed Development is consistent with the provisions of cl 6.1 of the GRLEP.
As there is work within an area close to the provision of electricity infrastructure, and as required by s 2.48(2) of the Transport and Infrastructure SEPP, the Respondent gave written notice to the electricity supply authority (Ausgrid). Ausgrid provided a response not objecting to the Proposed Development.
Chapter 3 of the Transport and Infrastructure SEPP includes relevant controls and standards for centre-based child care facilities at Pt 3.3, Early education and care facilities —specific development controls.
Section 3.22 of the Transport and Infrastructure SEPP applies to developments for the purpose of a centre-based child care facility if the floor area or outdoor space requirements do not comply with either regs 107 or 108 of the Education and Care Services National Regulations (the Education Regulation). If compliance is not reached, development consent must not be granted except with the concurrence of the Regulatory Authority. Regulations 107 and 108 of the Education Regulation require as a minimum:
an unencumbered internal space per child of 3.25 m2; and
an unencumbered outdoor or simulated outdoor space of 7 m2 per child.
The Proposed Development as amended by the Amended Documents is for a centre-based child care facility for a total of 76 children which, pursuant to regs 107 and 108 of the Education and Care Services National Regulations (the Education Regulation) requires a minimum of:
247m2 of unencumbered internal space; and
532m2 unencumbered outdoor space.
The Proposed Development as amended by the Amended Plans proposes indoor space and external space as listed in the Table on Plan DA102 Revision BB dated 28 November 2024. These indicate compliant provision of proposed indoor space of 281.42 m2 and proposed outdoor space of 572.06m2.
Non-discretionary development standards are prescribed in s 3.26 of the Transport and Infrastructure SEPP for particular matters relating to a centre-based child care facility that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. The parties agree that all non-discretionary development standards in s 3.26 have been achieved by the Amended Documents.
The Proposed Development also complies with the following development standards prescribed in the GRLEP:
Clause 4.3 of the GRLEP prescribes the maximum height of building of 9 metres to the Site. The Proposed Development as amended by the Amended Plans is below the maximum height of 9 metres.
Clause 4.4 of the GRLEP applies to the Site and prescribes the maximum FSR of 0.55:1. The Proposed Development as amended comfortably complies with this clause with a maximum FSR of 0.3:1
Neither the Site nor the existing building on the Site is a heritage item, nor is it within a heritage conservation area. The Site is located proximate to a heritage item being Peakhurst Public School located at 65A Bonds Road, Peakhurst. The SEE considers the impact of the Proposed Development on the heritage item at p 39 in accordance with cl 5.10 of the GRLEP and concludes that “having regard to the nature of the proposal and the ensuing relationship the proposed building will have with the item of heritage; views to, from and across this proximate item of heritage will not be adversely impeded upon as a result of this development.”
I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes 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 DA2023/0512 in accordance with the documents listed below:
| Description | Reference No. | Date | Revision | Prepared by | | Cover Page | DA001 | 28 November 2024 | BB | FLDC Architects | | Site Analysis Plan | DA002 | 28 November 2024 | BB | FLDC Architects | | Streetscape Character Analysis Plan | DA003 | 28 November 2024 | BB | FLDC Architects | | Site/Roof Plan 1:200 | DA100 | 28 November 2024 | BB | FLDC Architects | | Site/Roof Plan 1:100 | DA101 | 28 November 2024 | BB | FLDC Architects | | Basement Floor Plan | DA102 | 28 November 2024 | BB | FLDC Architects | | Ground Floor Plan | DA103 | 28 November 2024 | BB | FLDC Architects | | N&S Elevations | DA200 | 28 November 2024 | BB | FLDC Architects | | E&W Elevations | DA201 | 28 November 2024 | BB | FLDC Architects | | Elevation with fencing | DA202 | 28 November 2024 | BB | FLDC Architects | | Elevation with fencing | DA203 | 28 November 2024 | BB | FLDC Architects | | Internal Elevations | DA204 | 28 November 2024 | BB | FLDC Architects | | Sections | DA300 | 28 November 2024 | BB | FLDC Architects | | Sections | DA301 | 28 November 2024 | BB | FLDC Architects | | Sections | DA302 | 28 November 2024 | BB | FLDC Architects | | Sections – Sight Lines | DA303 | 28 November 2024 | BB | FLDC Architects | | Driveway Sections | DA304 | 28 November 2024 | BB | FLDC Architects | | Schedule of Colour and Materials | DA500 | 28 November 2024 | BB | FLDC Architects | | Ground Floor Drainage | Proj No 22-40Blake, Sheet No 200 | 12 January 2025 | L | Lomford Engineers Pty Ltd | | Rainwater Tank and OSD Details | Proj No 22-40Blake, Sheet No 400 | 22 October 2024 | L | Lomford Engineers Pty Ltd | | Landscape Plan | Project No 24-5074, Issue LEC, Sheets 1-3 | 9 December 2024 | D | Zenith Landscape Designs |
| Description | Reference No. | Date | Revision | Prepared by | | Access Design Assessment Report | P223_031-2 (ACCESS) DY | 30 May 2023 | 2 | Design Confidence | | Arboricultural Impact Assessment Report | | 7 August 2024 | | Jacksons Nature Works | | BCA Design Assessment Report | P223_031-2 JR | 31 May 2023 | 2 | Design Confidence | | Construction Management Plan | PP205PEA, DA 900 | 23 October 2023 | G | FLDC Architects | | Environmental Noise Impact Assessment | 7720-1.1R | 11 December 2024 | D | Day Design Pty Ltd | | Erosion and Sediment Control Plan | PP205PEA, DA 600 | 23 October 2023 | G | FLDC Architects | | Geotechnical Investigation Report | R23191 | 9 October 2023 | Rev0 | Nepean Geotechnics | | Site Waste Minimisation and Management Plan | PP205PEK | 26 October 2023 | | FLDC Architects | | Plan of Management | | February 2025 | V1.7 | Ology Early Childhood Consulting | | Site Management Plan | DA900 | 6 November 2023 | H | FLDC Architects | | Statement of Environmental Effects | Bond-28/23 | 14 June 2023 | | BMA Urban | | Stormwater & OSD Documentation Checklist | | 29 July 2024 | | Millad Rouhana | | Swept Path Plans | 240178, 03 Plans | 18 October 2024 | A | McLaren Traffic Engineering & Road Safety Consultants | | Survey Plan Details & Levels Taken Over Lot 4 of DP 562915 | Sheet 1/1 | 29 July 2022 | A | | | Traffic and Parking Impact Assessment | 240178.01FC | 25 September 2024 | C | McLaren Traffic Engineering & Road Safety Consultants | | Waste Management Plan | 24174 | September 2024 | | Dickens Solutions | | Owners consent letter | | 14 January 2025 | | | | Stormwater Engineering Design Statement | | 13 March 2025 | | Lomford Engineers Pty Ltd |
The Court orders:
The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendment of the application to reply on the documents at paragraph 2 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500 within 28 days from the date of these orders being made.
The appeal is upheld.
Development Application DA2023/0512 (DA) for Demolition of existing development, and the construction of a two storey 76 place centre-based childcare facility with 20 parking spaces, tree removal and associated landscaping, at 78 Bonds Road, Peakhurst NSW 2210 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.
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Annexure A
Azer
Georges River Council [2025] NSWLEC 1164