Chau v Georges River Council

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

Category: Principal judgment

Parties: Man Dick Chau (First Applicant)
Yuk Ching Law (Second Applicant)
Georges River Council (Respondent)

Representation: Counsel:
M Staunton (Applicants)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/470182

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house, including a first floor addition, at 25A Queens Road, Connells Point. The development application was refused by the respondent on 25 November 2024. The appeal is lodged 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 3 July 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 4 July 2025, 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 by 340mm (including a 230mm reduction at the northern leading edge), a shift of the first floor building footprint to the south by 1m to reduce the prominence of the upper-most level as viewed from the foreshore, the pulling back of the leading edge to reduce view impacts and building scale, changes to the colours and materials, and the provision of additional 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 Jurisdictional Statement, together with the documents referred to therein, the joint report of the town planners filed on 20 June 2025, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A and [8] 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 proposed development is for the purpose of a dwelling house, which is a permissible use in the R2 Low 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 concerning maximum floor space ratio (cl 4.4A(2)) and minimum area for landscaped area or natural rock outcrop (cl 6.12(5)(b)).

8. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard, pursuant to cl 4.6 of the GRLEP. The development standard establishes a maximum height of 9m, pursuant to cl 4.3(2) of the GRLEP. The proposed maximum height of 9.33m represents a contravention of 0.33m above the numerical standard. The contravention is confined to the minor uppermost components of the first floor, and, due to the location of the contravention, these components and the area of breach are not responsible for any additional adverse view loss or privacy impacts on neighbouring properties. Based on the written request dated June 2025, I am satisfied that the applicant has demonstrated that there are sufficient environmental planning grounds that justify the breach by demonstrating that it arises directly from prior excavation of the site, and that no breach would occur if natural ground level was used to measure height. I am also satisfied that the applicant has demonstrated that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance.

9. The site is mapped as having Class 5 Acid Sulfate Soils and is within 500m of adjacent land mapped as Class 1. As such, cl 6.1 of the GRLEP applies. However, a preliminary assessment undertaken and set out in the Geotechnical and Acid Sulfate Soil Investigation Report dated 25 September 2023 confirms that an acid sulfate soils management plan is not required. Accordingly, pursuant to cl 6.1(4), development consent is not required under cl 6.1.

10. The development application includes earthworks to facilitate the development. Based on the Jurisdictional Statement and Geotechnical and Acid Sulfate Soil Investigation Report dated 25 September 2023, I have considered the matters set out in cl 6.2(3) of the GRLEP.

11. Part of the site is located on the Coastal Hazard and Risk Map, and on the Foreshore Building Line Map. Consistent with the requirements of cl 6.4(3) of the GRLEP, the proposed alterations and additions to the existing dwelling do not extend into the areas mapped as Coastal Hazard and Risk and do not encroach beyond the Foreshore Building Line (as required by cl 6.4(3)(a)) and the swimming pool is permitted within that mapped area (by cl 6.4(3)(c)). Based on the design and location of the proposed development, including the architectural plans and stormwater drainage plan dated 27 June 2025, I have considered the matters in cl 6.4(4).

12. The site is identified as ‘sensitive land’ on the Riparian Lands and Waterways Map, such that cl 6.5 of the GRLEP applies. In circumstances where the proposed development relates to an already developed site with alterations and additions to an existing dwelling house, where there is proposed to be a stormwater drainage system outlined in the stormwater drainage plan dated 27 June 2025, and based on the Statement of Environmental Effects dated November 2023, I have considered each of the matters in cl 6.5(3) and I am satisfied that the development is designed, sited and will be managed to avoid significant adverse environmental impact, as required by cl 6.5(4).

13. The site is mapped as being located in the ‘Foreshore Scenic Protection Area’, such that cl 6.6 of the GRLEP applies. Based on the fact that the site is already developed, as well as the Class 1 Application documents, the architectural plans, the stormwater drainage plan dated 27 June 2025, the landscape plan dated 3 July 2025 and my observation of the character of dwellings that front the Georges River within the visual catchment, I am satisfied that the development will facilitate each of the matters in cl 6.6(3). In relation to views to and from the Georges River, I am satisfied that this impact has been minimised for the reasons set out in the joint report of the town planners filed on 20 June 2025.

14. The dwelling is already serviced by the essential services required by cl 6.9 of the GRLEP.

15. Clause 6.10 of the GRLEP concerns design excellence and applies to the proposed development. Based on the Statement of Environmental Effects dated November 2023, the architectural plans and the joint report of the town planners filed on 20 June 2025, I have considered each of the matters in cl 6.10(5) and I consider that the development exhibits design excellence, in satisfaction of cl 6.10(4).

16. Based on the landscape plan dated 3 July 2025 and the joint report of the town planners filed on 20 June 2025, I am satisfied of each of the matters in cl 6.12(4) of the GRLEP.

17. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 27 June 2025. Based on the BASIX report, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

18. The site is within the coastal environment area and the coastal use area, pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). Based on the nature of the proposed development on an existing developed site, as well as the Statement of Environmental Effects dated November 2023, the stormwater drainage plan dated 27 June 2025, the location of the site, and the Jurisdictional Statement, I have considered the matters in ss 2.10(1) and 2.11(1)(a) of the SEPP R&H, and, consistent with ss 2.10(2)(a) and 2.11(1)(b) I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the matters set out in ss 2.10(1) and 2.11(1)(a). Based on the same, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on the site or other land, as required by s 2.12. Additionally, there is no coastal management program that applies to the site, such that s 2.13 is not operative.

19. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP R&H. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

20. The site falls within the Georges River Catchment, such that Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Based on the Statement of Environmental Effects dated November 2023, the stormwater drainage plan dated 27 June 2025, the letter from ML Civil dated 27 June 2025 and the Jurisdictional Statement, I am satisfied of the matters in ss 6.6(2) and 6.7(2) of the SEPP B&C. 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).

21. The development application was publicly notified between 7 and 21 March 2024, and I have considered the issues raised in the written submissions received in response. In addition, I have considered the issues that were raised by residents at the commencement of the conciliation conference.

22. 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)).

23. 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.

24. The Court notes that the respondent, Georges River Council, approves, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending Development Application DA2023/0586 to rely on the following amended plans and documents:

| TAB | DOCUMENT | | 1 | Architectural Plans, prepared by Ursino Architects | | | Drawing No. | Drawing | Revision | Date | | | • | Cover Page | - | - | | | A101 | BASIX Requirements | D | 01/07/2025 | | | A201 | Site Analysis Plan 01 | C | 12/06/2025 | | | A202 | Site Analysis Plan 02 | C | 12/06/2025 | | | A203 | Site Plan | E | 03/07/2025 | | | A204 | Existing Ground Floor Plan | A | 27/11/2023 | | | A205 | Existing Lower Floor Plan | A | 27/11/2023 | | | A301 | Lower Floor Plan | E | 03/07/2025 | | | A302 | Ground Floor Plan | C | 12/06/2025 | | | A303 | First Floor Plan | C | 12/06/2025 | | | A306 | Roof Plan | C | 12/06/2025 | | | A401 | Section AA | C | 12/06/2025 | | | A402 | Section BB | C | 12/06/2025 | | | A501 | South Elevation | C | 12/06/2025 | | | A502 | East Elevation | E | 03/07/2025 | | | A503 | North Elevation | E | 03/07/2025 | | | A504 | West Elevation | C | 12/06/2025 | | | A601 | Calculations | E | 03/07/2025 | | | A602 | Erosion & Sediment Control Plan | E | 03/07/2025 | | | A702 | Shadow Diagram 21 June – 9am | C | 12/06/2025 | | | A703 | Shadow Diagram 21 June – 12pm | C | 12/06/2025 | | | A704 | Shadow Diagram 21 June – 3pm | C | 12/06/2025 | | | A705 | 3D Height Plane – Existing | C | 12/06/2025 | | | A706 | 3D Height Plane – Interpolated | C | 12/06/2025 | | | A801 | Perspectives 01 | C | 12/06/2025 | | | A802 | Perspectives 02 | E | 03/07/2025 | | | A901 | Materials & Window Schedules | D | 01/07/2025 | | 2 | Stormwater Drainage Plan, prepared by ML Civil and Structural Design Pty Ltd, project no. 23.230, drawing no. SW1, revision A, dated 27 June 2025. | | 3 | Certificate of Hydraulic Adequacy prepared by ML Civil and Structural Design Pty Limited dated 27 June 2025. | | 4 | Landscape Plan, prepared by Eco Design, revision B, dated 3 July 2025. | | 5 | BASIX Certificate No. A509182_02 dated 27 June 2025. | | 6 | BASIX Materials Report | | 7 | Clause 4.6 Variation Request, Clause 4.3 Height GRLEP 2021, prepared by BMA Urban, dated June 2025. | | 8 | Visual Impact Images prepared by Urbaine Design Group dated 18 June 2025. |

9. The Court orders that:

10. The appeal is upheld.

11. The request pursuant to clause 4.6 of the Georges River Local Environmental Plan 2021 (LEP) to vary the development standard for height contained in clause 4.3 of the LEP as prepared by BMA Urban dated June 2025 is upheld.

12. Development Application DA2023/0586 for alterations and additions to the existing dwelling house on land identified as Lot 101 in DP 880693, also known as 25A Queens Road, Connells Point NSW 2221, 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 (329 KB, pdf)

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