Connells Point Investments No. 1 Pty Ltd v Georges River Council

Category: Principal judgment

Parties: Connells Point Investments No. 1 Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
C Norton (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
Marsdens Legal Group (Respondent)

File Number(s): 2025/417012

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Georges River Council, of Development Application DA2025/0132 which initially sought consent for the demolition of existing structures, and construction of detached dual occupancy dwellings above a basement, including a swimming pools and detached garages, landscaping and site works at 7 Wadsley Crescent, Connells Point, Lot 80 DP 1302988.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 26 March 2026. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions. Amongst changes to the building massing, form, and interior layout, the amended application does not request consent for garages, but instead for carports, nor does it request water access for boats from the basement of the proposed building A.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 8 – 22 May 2025, during which time two submissions were received, however no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions and that the amended application does not necessitate renotification.

8. As the site is identified as being within a Coastal Environment Area and Coastal Use Area pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), Ch 2 of this SEPP applies. From the parties’ submission, the Geotechnical Investigation by EI Australia dated 6 March 2025 and the Geotechnical Letter, also from EI Australia dated 9 February 2026, the stormwater plans by Smart Structures Australia (various dates), and the agreed conditions of consent, I accept that the proposed development satisfies the requirements of ss 2.10, 2.11 and 2.12 of the SEPP R&H. Further, as no coastal management plan currently applies to the site, s 2.13 is also satisfied.

9. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Statement of Environmental Effects by Planzone dated 20 March 2025 (SEE), I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use.

10. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022, the proposal is a BASIX affected development. Accordingly, the application was accompanied by a BASIX certificate as required by the EPA Regulation.

11. The site is located within the Georges River Catchment and accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies. Based on the amended application, the SEE, the conditions of consent and the parties’ submission, I accept that the requirements of Ch 6 relating to water quality and quantity (s 6.6) and aquatic ecology (s 6.7) are met by the proposed development. I further accept that the site is not flood affected (s 6.8), the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10). Although the site is located within 100 m of a natural waterbody, I note that the proposed land use is not water-dependent, and conflicts between land uses have been minimised (s 6.11).

12. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a dwelling house is permissible with consent. A small portion of the site is zoned W2 Recreational Waterways, however no works are proposed in this zone.

13. GRLEP cl 4.1B provides a minimum lot size of 650 m2 and a minimum lot width of 15m, with which the site complies.

14. Pursuant to GRLEP cl 4.3, a maximum building height of 9 m applies to the subject site. The proposed development complies with this standard.

15. GRLEP cl 4.4A establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development again complies with this development standard with a maximum FSR of 0.481:1.

16. Pursuant to GRLEP cl 6.1, the site is identified as Class 5 and 2 on the Acid Sulfate Soils Map. An Acid Sulfate Soils Assessment by EI Australia has been prepared, dated 6 March 2025, which confirms that the potential for actual acid sulfate soils to be present on the site is low, and accordingly that an acid sulfate soils management plan is not required.

17. Pursuant to GRLEP cl 6.2, from the Geotechnical Investigation by EI Australia dated 6 March 2025 and the Geotechnical Letter, also from EI Australia dated 9 February 2026, I accept that the matters pertaining to earthworks have been adequately considered.

18. The amended application is supported by stormwater plans by Smart Structures Australia (various dates). From these documents, the SEE, and the relevant conditions of consent, I accept that the stormwater management of the development meets the requirements of GRLEP cl 6.3.

19. The site contains land mapped in the foreshore area forward of the foreshore building line, pursuant to GRLEP cl 6.4. Within this zone, the proposed development includes swimming pools and their surrounding deck, which is permissible pursuant to cl 6.4(3)(c). From the parties’ submission, the SEE and the amended architectural and stormwater plans, I have considered the matters listed in cl 6.4(4).

20. The site is mapped as ‘sensitive land’ pursuant to GRLEP cl 6.5 Riparian land and waterways. From the parties’ submission and the amended stormwater plans, I accept that the matters listed in cl 6.5(3) have been considered. I further accept that the development is designed, sited, and will be managed to avoid significant adverse environmental impact, or if it cannot be reasonably avoided the development is designed, sited and will be managed to minimise or mitigate that impact as required by cl 6.5(4).

21. Pursuant to the requirements of GRLEP cl 6.6, this site is identified as ‘Foreshore scenic protection area’. From the parties’ submissions and the amended application, I accept that the development facilitates the requirements listed in cl 6.6(3), noting the retention of existing rock formations and vegetation, and the response to topography that has occurred in the amended application.

22. Based on the parties’ submissions, the stormwater plans and the fact that the existing residential dwelling is fully serviced, I accept that all essential services are available, or that adequate arrangements have been made to make them available as required by GRLEP cl 6.9.

23. Pursuant to GRLEP cl 6.10, the consent authority must consider that the development exhibits design excellence through having regard to the matters listed in cl 6.10(5). From the parties’ submission and the amended application, I accept that when considered against cl 6.10(5), the proposed development exhibits design excellence for the purposes of GRLEP cl 6.10.

24. Pursuant to GRLEP cl 6.12 (landscaped areas in certain residential and conservation zones), based on the parties’ submission and the amended landscape plans, I accept that the landscaped area exceeds the minimum 30% landscaped area requirement with a provision of 37.63% landscaped area, and that the development satisfies the requirements listed in cl 6.12(4).

Conclusion

25. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. The Court notes:

27. The Respondent, Georges River Council, being the consent authority in respect of the development application, has approved the Applicant amending Development Application DA2025/0132 pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to rely on the following amended plans and documents:

| TAB | DOCUMENT | | 1. | Architectural Plans prepared by LEVEL 33 | | Drawing No. | Drawing Title | Revision | Date | | DA01 | Cover Page | E | 16/03/2026 | | DA010 | Demolition Plan | E | 16/03/2026 | | DA06 | Location Plan | E | 16/03/2026 | | DA101 | View From Water | E | 16/03/2026 | | DA102 | Site Design Constraints | E | 16/03/2026 | | DA201 | Site Plan | E | 16/03/2026 | | DA202 | Planning Controls | E | 16/03/2026 | | DA203 | Site Analysis Plan | E | 16/03/2026 | | DA204 | Photographic Survey | E | 16/03/2026 | | DA205 | Photographic Survey 2 | E | 16/03/2026 | | DA301 | Basement Floor Plans | E | 16/03/2026 | | DA302 | Lower Ground Floor Plans | E | 16/03/2026 | | DA303 | Ground Floor Plans | E | 16/03/2026 | | DA304 | First Floor Plans | E | 16/03/2026 | | DA306 | Roof Plan | E | 16/03/2026 | | DA401 | Sections | E | 16/03/2026 | | DA402 | Sections 2 | E | 16/03/2026 | | DA405 | Elevations | E | 16/03/2026 | | DA406 | Elevations 2 | E | 16/03/2026 | | DA408 | Elevations 3 | E | 16/03/2026 | | DA408 | Elevations 4 | E | 16/03/2026 | | DA409 | Elevations No Fence Shown | E | 16/03/2026 | | DA410 | Elevations 3 No Fence Shown | E | 16/03/2026 | | DA702 | Construction Management Plan | E | 16/03/2026 | | DA706 | Existing & New Winter Shadows | E | 16/03/2026 | | DA707 | Existing Winter Shadows | E | 16/03/2026 | | DA708 | Proposed Winter Shadows | E | 16/03/2026 | | DA801 | Finishes Schedule | E | 16/03/2026 | | DA802 | External Finishes Schedule | E | 16/03/2026 | | DA902 | Calculations | E | 16/03/2026 | | DA907 | Plan-Boat Access | E | 16/03/2026 | | DA909 | View Sharing Analysis | E | 16/03/2026 | | DA912 | ADJ Buildings Sun Access | E | 16/03/2026 | | DA914 | Existing 9m Heigh Control | E | 16/03/2026 | | DA917 | Sun Views in Winter | E | 16/03/2026 | | DA918 | Exist Sun Views in Winter | E | 16/03/2026 | | DA921 | Proposed Excavation | E | 16/03/2026 | | DA923 | Existing Upper Floor Plan | E | 16/03/2026 | | DA924 | Existing Lowe Floor Plan | E | 16/03/2026 | | DA928 | Proposed Excavation Lot B | E | 16/03/2026 | | DA929 | Proposed Excavation Lot A | E | 16/03/2026 | | DA930 | Views From Water | E | 16/03/2026 | | DA931 | Working Sections | E | 16/03/2026 | | 2. | Stormwater Plans prepared by Smart Structures Australia, dated 13 February 2025 | | Drawing No. | Drawing Title | Revision | Date | | D00 | Cover Sheet, Legend & Drawing Schedule | A | 24/03/2026 | | D01 | Basement Stormwater Drainage Plan | F | 24/03/2026 | | D02 | Lower Ground Floor Stormwater Drainage Plan | D | 19/03/2026 | | D03 | Ground Floor Stormwater Drainage Plan | D | 19/03/2026 | | D10 | Stormwater Drainage Sections and Details | B | 19/02/2026 | | D20 | Erosion and Sediment Control Plan and Details | A | 13/02/2025 | | 10. | Landscape Plans prepared by Zenith Landscape Designs | | Drawing No. | Drawing Title | Revision | Date | | L01 | Ground Floor Levels and Surfaces Plan | B | 24/03/2026 | | L02 | Lower Ground Floor Levels and Surfaces Plan | B | 24/03/2026 | | | L03 | Ground Floor Planting Plan | B | 24/03/2026 | | | L04 | Lower Ground Floor Planting Plan | B | 24/03/2026 | | | L05 | Area Calculations & Tree Canopy Analysis | B | 24/03/2026 | | | L06 | Plant Schedule | B | 24/03/2026 | | 14. | Survey Plans prepared by Geosurv: | | Sheet No. | Plan of | Revision | Date | | 1 of 3 | Plan Showing Detail and Level Survey No 7 Wadsley Crescent Connells Point | M | 11/02/2026 | | 2 of 3 | Plan Showing Detail and Level Survey No 7 Wadsley Crescent Connells Point | M | 11/02/2026 | | | 3 of 3 | Plan Showing Detail and Level Survey No 7 Wadsley Crescent Connells Point | M | 11/02/2026 | | 18. | Traffic Engineering Assessment Letter, prepared by Genesis Traffic, Reference 24162, dated 20 February 2026 | | 19. | Preliminary Waste Information Assessment, prepared by El Australia, Reference E26200.E05.001_Rev0, dated 3 February 2026 | | 20. | Geotechnical Letter on Excavation, prepared by El Australia, Reference E26200.G20.1, dated 9 February 2026 | | 21. | Response to Contention 10 of Statement of Facts and Contentions, prepared by Smart Structures Australia, Reference 210616-CL2, dated 12 February 2026 | | 22. | Design Excellence Statement, prepared by Level 33, dated 25 March 2026 | | 23. | Acid Sulfate Soils Assessment, prepared by El Australia, Reference E260200.E14.002_Rev4, dated 3 February 2026 | | 24. | Arboricultural Impact Appraisal and Method Statement, prepared by Naturally Trees, Revision D, dated 25 March 2026. | | 25. | Visual Impact Assessment, prepared by Urbaine Design Group, dated 20 February 2026. | | 26. | BASIX Certificate Number 1786351M-01, prepared by ECO Engineering Group Pty Ltd dated 25 March 2026 |

27. The Court orders:

28. The appeal is upheld.

29. Development Application No. DA2025/0132 for the demolition of existing structures, construction of detached dual occupancy, swimming pools, carports, landscaping and associated site works at 7 Wadsley Crescent, Connells Point, is determined by the grant of development consent subject to the conditions of consent contained at Annexure “A”.

E Washington

Commissioner of the Court

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