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[2026] NSWLEC 1544
General information, not legal advice.
Land and Environment Court (NSW)
2026-08-25
Targett 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: Chau v Georges River Council [2026] NSWLEC 1544
Hearing dates: Conciliation Conference 7 August 2026
Date of orders: 25 August 2026
Decision date: 25 August 2026
Jurisdiction: Class 1
Before: Targett C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application No. MOD2026/0064 for alterations and additions to the existing dwelling at Lot 101 in DP 880693, known as 25A Queens Road, Connells Point NSW 2221, is determined by way of approval.
(3) Development Consent No. DA2023/0586 is modified in the terms in Annexure A.
(4) Development Consent No. DA2023/0586 as modified by the Court, is Annexure B.
Catchwords: APPEAL – Modification Application – conciliation conference – agreement between the parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 4.55, 8.9
Land and Environment Court Act 1979 (NSW), ss 17, 34, 34AA
Georges River Local Environmental Plan 2021, cll 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 Pt 6.2
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, 4 ss 2.10, 2.11, 2.12, 2.13
State Environmental Planning Policy (Sustainable Buildings) 2022
Category: Principal judgment
Parties: Man Dick Chau (First Applicant)
Yuk Ching Law (Second Applicant)
Georges River Council (Respondent)
Representation: Counsel:
D Loether (Solicitor) (Applicant)
S Lasker (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Georges River Council (Respondent)
File Number(s): 2026/177293
Publication restriction: Nil
This matter concerns an appeal made directly to the Land and Environment Court, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), by the applicant seeking to modify DA2023/0586 (Original Consent). The Original Consent was granted by the Land and Environment Court on 15 July 2025 (see Chau v Georges River Council [2025] NSWLEC 1496) and approved alterations and additions to an existing dwelling house on land identified as Lot 101 in DP 880693, known as 25A Queens Road, Connells Point NSW 2221 (Subject Land).
The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).
The Modification Application MOD2026/0064 was made directly to the Court on 30 April 2026 pursuant to s4.55(8) of the EPA Act and sought to amend the Original Consent by making internal and external changes to the approved development, including reinstatement of existing retaining walls, minor interior amendments, additional lower ground floor space and rear retaining walls.
The Modification Application was publicly notified between 14 May and 4 June 2026. Four submissions were received in response to the public notification objecting to the proposal raising concerns including:
whether the proposal was substantially the same development;
whether a new development application should be lodged;
unauthorised demolition works;
height of buildings;
floor space ratio (FSR);
inadequate geotechnical report;
view impacts;
easement rights;
landscaping;
setbacks;
impacts associated with and from proposed earthworks;
the swimming pool;
foreshore controls;
retaining walls; and
currency of, and lack of detail in, submitted documents.
The Court arranged a conciliation conference and hearing under s 34 and 34(4)(b) of the LEC Act on 25 and 26 August 2026. Prior to the conciliation conference and hearing, the parties reached agreement under s34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties.
An agreement was filed on 5 August 2026 following the applicant agreeing to amend its Modification Application with the respondent’s agreement (Amended Modification Application). The matter was listed for a conciliation conference under s 34 of the LEC Act on 7 August 2026. I presided over the conciliation conference.
The agreed amendments to the Modification Application primarily relate to undated landscaping plans.
The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.
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.
On 15 December 2025, a number of relevant provisions of the EPA Act were amended, including the Objects of the EPA Act and ss 4.15 and 4.17 by the Environmental Planning and Assessment Amendment (Planning System Reforms) Act 2025 (NSW) (Amending Act). Part 15 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) sets out savings provisions for development applications lodged but not determined before the commencement of the Amending Act. As a consequence of the savings provisions in s 34 of the EPA Regulation, the Amended Modification Application is to be assessed and determined on the basis of the version of the EPA Act in force as at 14 December 2025.
As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.
Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.
For the purposes of s 4.55(2)(a) of the EPA Act, the development to which the Original Consent as modified relates is the same, or substantially the same, development as the development for which the Original Consent was granted. I have formed this view for the following reasons identified in the jurisdictional statement and Statement of Environmental Effects prepared by BMA Urban dated March 2026 (SEE), including:
The modified development retains the essential identity of the development approved under the Original Consent as the development continues to be a single dwelling house of contemporary architectural expression, arranged across multiple levels in response to the site’s topography and waterfront setting.
While there are minor dimensional adjustments, including a nominal increase to internal floor levels, these are accommodated within the existing roof form and do not result in any meaningful change to the overall height or perceived bulk of the building.
The extent of site landscaped area associated with the reconstruction works does not fundamentally alter the overall balance between built and unbuilt areas on the site which will remain consistent with the Original Consent.
From a built form perspective, the overall envelope, scale, and massing of the development approved by the Original Consent are maintained notwithstanding the proposed modification.
The parties agree that the requirements of s 4.55(2)(b) of the EPA Act are not relevant in this matter.
In relation to s 4.55(2)(c) of the EPA Act, as set out at [4] above, the Modification Application was publicly notified between 14 May and 4 June 2026. Four submissions were received in response to the public notification objecting to the proposal.
In relation to s 4.55(2)(d) of the EPA Act, the parties agree that the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve this matter. The parties further agree that the relevant concerns of objectors have been considered and addressed where appropriate (see particularly conditions 18, 40(c) and 47 of the agreed conditions).
In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court – see Chau v Georges River Council [2025] NSWLEC 1496 for the grant of the Original Consent).
Matters relevant to s 4.15(1) of the EPA Act are considered below.
Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Amended Modification Application as the Subject Land is mapped as being with the “coastal use area” and therefore, “coastal zone” for the purposes of the RH SEPP.
The Subject Land’s coastal environment and water impact was considered in the granting of the Original Consent having regard to ss 2.10 and 2.11 of the RH SEPP. The parties agree, and I accept, that the Amended Modification Application will not alter the original conclusions reached in respect of the Original Consent in respect of ss 2.10 and 2.11 of the RH SEPP.
Pursuant to s 2.12 of the RH SEPP, the parties agree, and I accept, that the geotechnical measures proposed by the development will ensure that the proposal will not result in impacts on the adjoining buildings, roads or public infrastructure (see par 4.4.4 of the Geotechnical and Acid Sulfate Soils Investigation Report prepared by Geo-Environmental dated 17 November 2025 (Geotech Report)). Therefore, s 2.12 of the RH SEPP is satisfied.
Further, the parties agree and I accept that there is no coastal management program applying to the Subject Land in respect of s 2.13 of the RH SEPP.
The Subject Land is also subject to the provisions in Ch 4 of the RH SEPP relating to remediation of land.
The Amended Modification Application is also subject to the provisions in Ch 4 of the RH SEPP relating to remediation of land.
The parties agree, and I accept that, the Amended Modification Application does not give rise to any further or additional considerations of the RH SEPP beyond what was considered in the granting of the Original Consent.
Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the proposed development as the Subject Land is located within the Georges River catchment. Part 6.2 of Ch 6 sets out various matters in relation to which the consent authority must be satisfied, or must consider, before granting development consent.
The parties submit, and I accept, that the Amended Modification Application will not have any significant impact on the environmental quality of the Georges River catchment, and the matters for consideration and satisfaction under Pt 6.2 have been addressed in the Stormwater Plans prepared by Allied Consultants dated 10 April 2026 (Stormwater Plans) and agreed conditions of consent.
The Subject Land is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP). Accordingly, dwelling houses are permitted with consent in the R2 zone.
The parties agree, and I accept, that the Amended Modification Application does not seek to vary any development standards contained within the GRLEP.
Pursuant to cl 6.1 of the GRLEP relating to acid sulfate soils, part of the Subject Land is identified as a Class 5 area and within proximity to Class 1 area. Having regard to the fact that the water table is not required to be dewatered below 1m AHD and the findings of the Geotech Report (see pp 8-10 and 27), I am satisfied that an acid sulfate soil management plan is not required for the purposes of cl 6.1 of the GRLEP.
Pursuant to cl 6.2 of the GRLEP relating to earthworks, the consent authority must consider the matters set out in cl 6.2(3) of the GRLEP before granting consent. The parties agree, and I accept, that the matters in cl 6.2(3) have been considered having regard to the Geotech Report, Sediment and Erosion Control Plan prepared by Ursino Architects dated 27 November 2023 and agreed conditions of consent.
Pursuant to cl 6.3 of the GRLEP relating to stormwater management, the consent authority must be satisfied of the matters in cl 6.3(2) before granting consent. The parties agree, and I accept that the matters in cl 6.3(2) are satisfied having regard to the Stormwater Plans and agreed conditions of consent.
Pursuant to cl 6.4 of the GRLEP relating to foreshore area and coastal hazards and risk, development consent must not be granted unless the consent authority is satisfied of the matters in cl 6.4(3) and has considered the matters in cl 6.4(4). The parties agree, and I accept, that the matters in cl 6.4(3) and (4) have been satisfied and considered respectively, having regard to p 29 of the SEE.
Pursuant to cl 6.5 of the GRLEP relating to riparian land and waterways, development consent must not be granted unless the consent authority has considered the matters in cl 6.5(3) and is satisfied of the matters in cl 6.5(4). The parties agree, and I accept, that the matters in cl 6.5(3) and (4) have been considered and satisfied respectively, having regard to pp 30-31 of the SEE.
Pursuant to cl 6.6 of the GRLEP relating to foreshore scenic protection area, development consent must not be granted unless the consent authority is satisfied of the matters in cl 6.6(3). The parties agree, and I accept, that the matters in cl 6.6(3) have been satisfied, having regard to pp 32-33 of the SEE.
Pursuant to cl 6.12 of the GRLEP relating to landscaped areas in certain residential and conservation zones, development consent must not be granted to development unless the consent authority is satisfied of the matters set out in cl 6.12(4) and, relevantly in this matter, have a minimum of 25% of the site area consisting of landscaped area. Having regard to the Architectural Plan A601 prepared by Ursino Architects dated 7 April 2026, the parties agree, and I accept, that the matters in cl 6.12(4) are satisfied and the Amended Development Application proposes 25% of the site area as landscaped area.
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, as the consent authority, has approved pursuant to s 113(1) of the EPA Regulation, the applicant amending Modification Application No. MOD2026/0064 to rely on the following amended plans and documents:
Landscape plan L-01 Revision C prepared by Eco Design dated 25 June 2026; and
Landscape Design Statement prepared by Eco Design dated 3 July 2026.
The Court orders that:
The appeal is upheld.
Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application No. MOD2026/0064 for alterations and additions to the existing dwelling at Lot 101 in DP 880693, known as 25A Queens Road, Connells Point NSW 2221, is determined by way of approval.
Development Consent No. DA2023/0586 is modified in the terms in Annexure A.
Development Consent No. DA2023/0586 as modified by the Court, is Annexure B.
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Chau
Georges River Council