Crnjak v Georges River Council

Texts Cited: Georges River Development Control Plan 2021

Category: Principal judgment

Parties: Tony Crnjak (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
V Conomos (Solicitor) (Applicant)
L Melvin (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Georges River Council (Respondent)

File Number(s): 2025/281633

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of development application DA 2025/0011. As amended the development application seeks consent for demolition of all existing structures, tree removal, and construction of a two storey dwelling, construction of a swimming pool and landscaping work. The development is proposed at 33 Princes Street, Mortdale (Lot 15 Sec 7 DP 1884).

2. A conciliation conference was held between the parties on 18 November 2025 pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. This agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s 34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 (McMilan) at [51].

3. As the presiding Commissioner, I am satisfied that the second condition is met, that being the decision is one that the Court can make in the proper exercise of its functions see McMillan at [51]. I form this state of satisfaction on the basis that:

4. The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

5. The development application was notified by the Respondent from 6 February 2025 for a period of 14 days. No submissions were received by the Respondent. I accept the agreement of the parties that renotification of the amended development application is not required as the amendments reduce any environmental impacts of the proposed development.

6. The development application is accompanied by the BASIX certificate in compliance with State Environmental Planning Policy (Sustainable Buildings) 2022.

7. The development application was referred to Ausgrid pursuant to s 2.48(2)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021. Ausgrid has confirmed the development is satisfactory subject to the imposition of relevant conditions, which are incorporated in Annexure A.

8. Pursuant to s 2.3 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC), Ch 2 ‘Vegetation in Non-Rural Areas’ applies to the amended development application. The street frontage of the proposed development contains a substantial street tree which has been assessed by an arborist. Appropriate conditions to facilitate the retention of this tree are included in Annexure A. Further, planting is proposed in the front setback of the site. The parties agree, and I accept, that the relevant provisions of Ch 2 of the SEPP BC are met.

9. The site is located within the Georges River Catchment in accordance with the maps associated with the SEPP BC and is subject to the provisions in Chapter 6 of the SEPP BC, but it is located outside the Foreshores and Waterways Area identified in the relevant map (see s 6.28 of the SEPP BC).

10. In deciding whether to grant development consent, the consent authority must consider ss 6.6(1), 6.7(1), 6.8(1) and 6.9(1) in Ch 6 of the SEPP BC which require consideration of the impacts of development on land located within the Georges River Catchment, which is a "regulated catchment" as defined in Sch 6 – Dictionary to Ch 6 of the SEPP BC.

11. Sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2) in Div 2 of Pt 6.2 of the SEPP BC precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

(a) Water quality and quantity; (b) Aquatic ecology; (c) Flooding; (d) Recreation and public access; and (e) Total catchment management.

9. The Applicant’s development application includes stormwater engineering plans. On the basis of these stormwater plans and the minor nature of the works for which consent is sought under the development application as a whole, I accept the agreement of the parties in relation to the s 6.6(1) considerations, that:

(a) Subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway. Such erosion and sediment control measures are required by the consent conditions in Annexure A; (b) The development will not have an adverse impact on water flow in a natural waterbody; (c) There will be no discernible increase to stormwater runoff that would adversely affect downstream land; (d) The development does not incorporate on-site stormwater retention, infiltration or reuse; (e) The development does not involve significant excavation and will have no impact on the level and quality of the water table; (f) Cumulative environmental impacts from the development on the regulated catchment are negligible; and (g) The development makes adequate provision to protect the quality and quantity of groundwater.

10. On the same reasoning as [3(7)] above, I accept the agreement of the parties in relation to the s 6.6(2) considerations, that:

(a) The effect on the quality of water entering a natural waterbody will be as close as possible to neutral; and (b) The development has negligible and satisfactory water flow impacts for a natural waterbody.

11. On the same reasoning as [3(7)] above, I accept the agreement of the parties in relation to the s 6.7(1) considerations, that:

(a) To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application; (b) The development does not involve the clearing of riparian vegetation; (c) The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway; (d) The development will not have an adverse impact on wetlands; (e) The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures; and (f) The development does not adjoin a natural waterbody.

12. On the same reasoning as [3(7)] above, I accept the agreement of the parties in relation to the s 6.7(2) considerations, that:

(a) Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development; (b) The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (c) No approval or permit is required under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW); (d) The land does not abut a natural waterbody; and (e) There will be no adverse impact on wetlands.

13. On the same reasoning as [3(7)] above, I accept the agreement of the parties in relation to s 6.9(1) considerations, that:

(a) The development will have no impact on recreational land uses in the Georges River Catchment; and (b) The development has no impact on public access to and around foreshores. (c) On the same reasoning as [3(8)] above, I accept the agreement of the parties in relation to s 6.9(2) considerations, that: (d) The development has no impact on public access to and from natural waterbodies for recreational purposes; (e) The development does not involve new or existing points of public access to natural waterbodies; and (f) The land does not form part of a foreshore of a natural waterbody.

14. On the same reasoning as [3(7)] above, I accept the parties’ position that the development will not have an adverse environmental impact for adjacent and downstream local government areas: s.6.10 of the SEPP BC.
15. In relation to s 6.11 of the SEPP BC, the land is not within 100m of a natural waterbody. The site is not within a riverine scenic area (s 6.12), a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) or the Sydney Drinking Water Catchment (s 6.60) and does not involve temporary use of land (s 6.14).
16. The requirements of SEPP BC are met by the amended development application.
17. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires a consent authority to consider the contamination of land when determining a development application. The historical use of the site was as part of the grounds of a residential dwelling. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.
18. Pursuant to Georges River Local Environmental Plan 2021 (LEP 2021) the site is zoned R2 Low Density Residential. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021. The proposed development, dual occupancy, is permitted with consent in the zone. In determining the development application, I have had regard to the following objectives of the R2 Low Density Residential zone.
19. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021.
20. The development application is compliant with the provisions of cl 4.3 ‘Height of Buildings’ and cl 4.4 ‘Floor space ratio’.
21. Pursuant to cl 6.2 ‘Earthworks’ I am satisfied that the earthworks proposed in the development application are ancillary to the development. The development application includes a Geotechnical Investigation Report and Stormwater Plans. With the assistance of these documents, and the imposition of the conditions in Annexure A, I accept the agreement of the parties that those works will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
22. Pursuant to cl 6.3 ‘Stormwater management’ of LEP 2021 the development application includes provision for the appropriate collection, retention and discharge of stormwater. With the assistance of the Stormwater Plans and the annexed conditions, I am satisfied the proposal will meet the objectives of the clause and the proposed consent incorporates appropriate conditions.
23. The parties agree, and I accept, that cl 6.9 ‘Essential Services’ of LEP 2021 is satisfied as the nominated services are either available or adequate arrangements have been made to make them available when required.
24. Clause 6.12 ‘Landscaped areas in certain residential and conservation zones’ applies to the site as it is within the R2 Low Density Residential zone. The clause requires the consent authority to be satisfied that the development:

(a) Allows for the establishment of appropriate planting; (b) Maintains privacy between dwellings; (c) Does not adversely impact the health, condition and structure of existing trees, tree canopies and root systems on the land or adjacent land; (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.

25. Further, the clause requires the provision of landscaping to 20% of the site. The proposed development provides for landscaping to 23.3% of the site. I am satisfied that this provision and the preceding requirements are satisfied.

26. Georges River Development Control Plan 2021 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the DCP under s 4.15(1) of the EPA Act.

27. Having reached the state of satisfaction that the decision is one that the Court could make 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)).

28. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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.

Notes

6. The Court notes that The Respondent Georges River Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to the applicant amending Development Application No. DA2025/0011 in accordance with the amended plans and documents listed below.

7. Architectural plans:

| Architectural Plans | | Coversheet | AP01 | 27.10.2025 | B | LYMT | | Development Data | AP02 | 27.10.2025 | B | LYMT | | Site Plan | AP03 | 3.11.2025 | D | LYMT | | Basement Plan | AP04 | 27.10.2025 | C | LYMT | | Ground Floor Plan | AP05 | 27.10.2025 | B | LYMT | | First Floor Plan | AP06 | 27.10.2025 | B | LYMT | | Roof Plan | AP07 | 27.10.2025 | B | LYMT | | South East and North West Elevation | AP08 | 21.10.2025 | C | LYMT | | North East and South West Elevation | AP09 | 11.112025 | D | LYMT | | Basement FSR Plan | AP014 | 27.10.2025 | A | LYMT | | Ground Floor FSR Plan | AP015 | 27.10.2025 | A | | | First Floor FSR Plan | AP016 | 27.10.2025 | A | | | Section 1-4 | Ap018 | 27.10.2025 | A | LYMT | | Section 5-6 | AP018 | 27.10.2025 | A | LYMT | | 3D Views Sheet 1 | Ap021 | 27.10.2025 | A | LYMT | | 3D Views Sheet 2 | AP022 | 27.10.2025 | A | LYMT | | 3D Views Sheet 3 | AP023 | 27.10.2025 | A | LYMT | | 3 Storey Overlay | AP024 | 27.10.2025 | A | LYMT | | External Wall Types | AP017 | 27.10.2025 | A | LYMT |

2. BASIX certificate

| BASIX Certificate No. Certificate number: 1776301S_02 | Dated | | Building & Energy Consultants Australia | 12.11.2025 |

3. Stormwater Plans

| Stormwater Plans | | Stormwater Plan | HS01 | 7/11/2025 | Issue DA5 | Central Engineers | | Stormwater Plan – Basement Level/ Site Plan & Details | HS02 | 7/11/2025 | Issue DA5 | Central Engineers | | Stormwater Plan – Ground Floor Level Plan & Details | HS03 | 7/11/2025 | Issue DA5 | Central Engineers | | Stormwater Plan – Level 1 and Roof Plan & Details | HS04 | 7/11/2025 | Issue DA5 | Central Engineers |

4. Landscape Plans

| Landscape Plans | | Landscape Details 1 of 2 | - | 10.11.2025 | - | Monaco Designs P/L | | Landscape Details 2 of 2 | - | 10.11.2025 | - | Monaco Designs P/L |

Orders

7. The Court orders that:

8. The appeal is upheld

9. Development application DA2025/0011 for the demolition of existing structures, and construction of a two storey dwelling house including a basement and a swimming pool at 33 Princes Street, Mortdale (Lot 15 Sec 7 DP 1884) is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

**********

Annexure A (325 KB, pdf)