CS Reserve Group Pty Ltd ATF CS Property Trust v Georges River Council

Category: Principal judgment

Parties: CS Reserve Group Pty Ltd ATF CS Property Group (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
G Visentin (Solicitor) (Applicant)
R O’Gorman Hughes (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Georges River Council (Respondent)

File Number(s): 2024/353038

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 deemed refusal of a development application DA2024/0348 for the construction of a multi dwelling housing development containing five dwellings at 29 Ada Street, Oatley legally known as Lot 19, Section F, DP 2150 (the Site) by Georges River Council (the Council).

2. This matter commenced as a hearing however the parties, having reached agreement, requested that the matter be relisted as a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The request was granted and the conciliation conference was held on 11 August 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

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 matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports, and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Court notes that the Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 11 August 2025 and are listed under Condition 1 of the conditions of consent at Annexure A. Changes made to the proposal to address the contentions include:

6. Reduction in cut and fill achieved via stepping of the building relative to the existing topography

7. Reduction in the height of the rear unit (D5) from 2 storey to 1 storey (i.e. < 5m above existing ground) which negates the requirement for a cl 4.6 variation

8. Deletion of the front boundary fence and increased landscaping

9. Reduction in building bulk as viewed from the street resulting from recessive first floor and roof, deletion of blade walls to southern and northern elevations

10. Lowering of driveway from RL38.30 to RL38.15

11. Deletion of planter boxes to northern and southern elevations, raised sill heights to 1m, highlight windows and screens to minimise overlooking

12. Retention of southern side boundary fence and existing hedge

13. Amended basement setbacks to ensure retention of tree (T4) and associated layout changes

14. Amended side (3m) and rear setback (ranging from 3m to 6m) of rear unit (D5)

15. Amended shadow diagrams including elevation diagrams

16. Changes to the stormwater layout to address Council’s requirements, and

17. Amendment to the proposed waste facilities in accordance with Council’s requirements.

18. The parties advise that the amendments resolved the respondent’s contentions and addressed the matters raised in submissions to the respondent’s satisfaction.

Jurisdictional matters

7. 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

Georges River Local Environmental Plan 2021

8. The development works are for the purposes of multi dwelling housing, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP). Further the proposed development is consistent with the objectives of the R3 zone as required by cl 2.3 of GRLEP.

9. The proposed development complies with the minimum lot size for multi dwelling housing in the R3 Medium Density Residential zone, having an area of 1,000.2m2 where a minimum of 800m2 is required, and a lot width at the front building line of 20.115m where a minimum of 18m is required in accordance with cl 4.1B(2) of GRLEP.

10. The proposed development complies with the development standards for height and floor space ratio that apply to the site pursuant to cl 4.3 and cl 4.4 of GRLEP respectively having a height of 8.6m (maximum of 9m applies) and FSR of 0.7:1 (maximum of 0.7:1 applies).

11. The amended proposed development is also consistent with cl 4.3A of GRLEP which provides that the maximum height of a building that forms part of a multi dwelling housing development adjacent to the rear boundary is 5m. Consistent with this provision the building to the rear (D5) has been amended to single storey with a maximum height of 5m.

12. The site is mapped as containing Class 5 Acid Sulfate Soils however the parties agree that the proposed works are not within 500m of adjacent Class 1 – 4 land and are unlikely to lower the water table of such land by more than 1m therefore in accordance with cl 6.1 of GRLEP no further consideration in this regard is required.

13. The development application includes evidence in the form of a concept stormwater plan in satisfaction of the requirements of cl 6.3(2) of GRLEP.

14. Under cl 6.9 of GRLEP consent cannot be granted unless essential services are available to the development or adequate arrangements have been made to make them available when required. The subject application includes evidence that essential services are available to the development in satisfaction of this requirement.

15. Evidence is also provided that the proposed development provides for a landscape area of 21.5% of the site area in accordance with the requirements of cl 6.12 of GRLEP which requires a minimum landscape area of 20% of the site area in the R3 Medium Density Residential zone.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal, consistent with s 2.6, seeks consent for tree removal therefore no further assessment in this regard is required.

17. The site falls within the Georges River Catchment under the BC SEPP, such that Pt 6.2 applies to the development application. Evidence exists in the form of amended stormwater plans and a Statement by Greenview Consulting (11 August 2025) to satisfy the matters outlined in ss 6.6, 6.7 and 6.8 of the BC SEPP.

State Environmental Planning Policy (Resilience and Hazards)

18. Consideration has been given as to whether the site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 as outlined in the Statement of Environmental Effects (Maximus Developments Australia, 18 July 2024). As the site has historically been used for residential purposes, the parties consider that it is unlikely to be contaminated.

State Environmental Planning Policy (Sustainable Buildings) 2021

19. The proposal is ‘BASIX development’ in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. An amended BASIX Certificate prepared by Rozna Group (Cert No. 1807420M dated 7 August 2025) has been submitted as required by s 27 of the EPA Reg. Further the BASIX Certificate includes quantification of the embodied emissions of the proposal in accordance with s 2.1(5) of the SB SEPP.

Other matters

20. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

21. The development application was notified between 27 August and 19 September 2024 and ten submissions were received. In addition, the Court was addressed by one submitter at the commencement of the site view. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

22. 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)).

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 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.

Orders

24. The Court orders that:

25. The appeal is upheld.

26. Development Application DA2024/0348 for the construction of a two storey multi dwelling housing development containing five dwellings over basement carpark including landscaping and site works at Lot 19, Section F, DP 2150 known as 29 Ada Street, Oatley is determined by the grant of consent subject to conditions of consent at Annexure A.

27. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the costs of the Respondent that are thrown away as a result of the amending the Development Application in the agreed amount of $13,000 to be paid within 28 days of the date of these orders.

……………………….

H Miller

Acting Commissioner of the Court

Annexure A (537 KB, pdf)

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