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[2025] NSWLEC 1613
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-26
Washington 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: CS Reserve Group Pty Ltd ATF CS Property Trust v Georges River Council [2025] NSWLEC 1613
Hearing dates: Conciliation conference on 6 August 2025
Date of orders: 26 August 2025
Decision date: 26 August 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA2024/0336 for the demolition of existing structures and construction of multiple dwellings, and associated works, on Lot 1 in Deposited Plan 316581 to Lot 7 Section F in Deposited Plan 2150 (Auto Consol 3979-23), being 50 Rosa Street Oatley is determined by the grant of consent subject to the conditions set out in Annexure A.
(3) 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 amending the Development Application in the agreed amount of $12,000.00, to be paid within 28 days of the date of these orders.
Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulations 2021 (NSW), s 38
Georges River Local Environmental Plan 2021, cll 4.1B, 4.3, 4.3A, 4.4, 6.1, 6.3, 6.9, 6.12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6 - 6.10
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category: Principal judgment
Parties: CS Reserve Group Pty Ltd ATF CS Property Trust (Applicant)
Georges River Council (Respondent)
Representation: Counsel:
G Visentin (Applicant)
R O’Gorman Hughes (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2024/353021
Publication restriction: No
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Georges River Council, of Development Application DA2024/0336, which seeks consent for the demolition of existing structures and construction of multi-dwelling housing and associated site works at 50 Rosa Street, Oatley.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
Following an earlier unsuccessful conciliation conference, the Court arranged a hearing for the 6 and 7 August 2025. At the commencement of the hearing on 6 August, the parties indicated that they had continued in without prejudice discussions and had reached agreement as to acceptable terms of a decision in the proceedings. Accordingly, they requested a further conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on the same day.
The decision reached by the parties in this conciliation involved the Court exercising the function under s 4.16 of the EPA Act to grant consent to uphold the appeal and grant development consent to the development application subject to conditions. 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 the Council's concerns.
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. Accordingly, there are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties have identified and from this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 27 August to 19 September 2024, during which time six submissions were received. Based on the amended application and the agreed conditions of consent, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.
The subject site is zoned R3 Medium Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of multi dwelling housing is permissible with consent. The proposed development is consistent with the objectives of this zone.
GRLEP cl 4.1B sets a minimum lot size of 800m2 and minimum lot frontage of 18m, with which the proposal complies with a site area of 1087.6m2 and frontage to Rosa St of 21.94m.
Pursuant to GRLEP cl 4.3, a maximum building height of 9m applies to the subject site, to which the proposal complies. Clause 4.3A sets a further provision that the maximum height of a building that forms part of multi-dwelling housing is 5m above existing ground level if the building is adjacent to the rear boundary of the lot. Again, the proposal complies with the rearmost building at or less than 5m high.
GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.7:1. The proposed development again complies with this development standard with a maximum FSR of 0.69:1.
Pursuant to GRLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. However, the site is not within 500m of any adjacent Class 1, 2, 3 or 4 land, and does not propose any works likely to lower the water table below 1m Australian Height Datum. Accordingly, the requirements of this clause are met.
From the parties’ submission and the civil engineering plans by Greenview Consulting, dated 29 July 2025, I accept that the matters listed in GRLEP cl 6.3(2) have been considered, and the stormwater provisions of cl 6.3 are met. I note that this includes written owner’s consent for the proposed drainage easement over the neighbouring 45 Ada Street.
As the site is an existing residential use and noting the owner’s consent for the drainage easement above, I accept the parties’ submission that the services that are essential for the development are available, or that adequate arrangements have been made to make them available when required in accordance with GRLEP cl 6.9.
The proposed development includes landscaping to 25.2% of the site area, and therefore complies with the minimum 20% requirement set pursuant to GRLEP cl 6.12.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 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 SEE, I accept that subject to the agreed conditions of consent, the site has historically been used for residential purposes and there is no record of any contamination, or contaminating activity on site. Accordingly, I accept that in terms of contamination, the site is suitable for the intended use.
The site is located within the Georges River Catchment. From the parties’ submission, the SEE and the stormwater plans, I accept that the requirements of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).
A BASIX certificate has been issued that relates to the development as amended.
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, as required by s 34(3) of the LEC Act, and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
Georges River Council, as the relevant consent authority, has agreed, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending the development application DA Number DA2024/0336 in accordance with the plans and documents listed below:
| Plans | | Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | A0000 | Cover Sheet | M | EMK Architects | 31/07/2025 | | A0002 | Site Location | M | EMK Architects | 31/07/2025 | | A0003 | Streetscape Character Analysis | M | EMK Architects | 31/07/2025 | | A0004 | Site Analysis Plan | M | EMK Architects | 31/07/2025 | | A0005 | Demolition Plan | M | EMK Architects | 31/07/2025 | | A0006 | Site Plan | M | EMK Architects | 31/07/2025 | | A0101 | Floor Plan – Basement | M | EMK Architects | 31/07/2025 | | A0102 | Floor Plan – Ground | M | EMK Architects | 31/07/2025 | | A0103 | Floor Plan – Ground Original | M | EMK Architects | 31/07/2025 | | A0104 | Floor Plan – Level 01 | M | EMK Architects | 31/07/2025 | | A0105 | Roof Plan | M | EMK Architects | 31/07/2025 | | A0201 | Elevations Sheet 1 | M | EMK Architects | 31/07/2025 | | A0202 | Elevations - Sheet 2 | M | EMK Architects | 31/07/2025 | | A0301 | Sections - Sheet 1 | M | EMK Architects | 31/07/2025 | | A0302 | Sections – Sheet 2 | M | EMK Architects | 31/07/2025 | | A0303 | Sections – Sheet 3 | M | EMK Architects | 31/07/2025 | | A0401 | Driveway Plan | M | EMK Architects | 31/07/2025 | | A0501a | Calculation Plans | M | EMK Architects | 31/07/2025 | | A0501b | Calculation Plans | M | EMK Architects | 31/07/2025 | | A0504 | Sun Analysis – VFS | M | EMK Architects | 31/07/2025 | | A0505a | Shadow Diagrams | M | EMK Architects | 31/07/2025 | | A0505b | Shadow Diagrams | M | EMK Architects | 31/07/2025 | | A0505c | Shadow Diagrams | M | EMK Architects | 31/07/2025 | | A0506 | Cut and Fill Plans | M | EMK Architects | 31/07/2025 | | A0507 | Deep Soil Calculation | M | EMK Architects | 31/07/2025 | | A0601 | Finishes Schedule | M | EMK Architects | 31/07/2025 | | A0703 | Photomontage – Proposed | M | EMK Architects | 31/07/2025 | | A0801 | Site Management Plan | M | EMK Architects | 31/07/2025 | | A0802 | Waste Management Plan | M | EMK Architects | 31/07/2025 | | Stormwater Plans | | | | | | C1 | Notes and Legends | 6 | Greenview Consulting | 29/07/25 | | C2 | Basement 1 Drainage Plan | 6 | Greenview Consulting | 29/07/25 | | C3 | Ground Floor Drainage Plan | 4 | Greenview Consulting | 29/07/25 | | C4 | Site Stormwater Details Sheet 1 | 6 | Greenview Consulting | 29/07/25 | | C5 | Site Stormwater Details Sheet 2 | 6 | Greenview Consulting | 29/07/25 | | C6 | Easement Plan | 4 | Greenview Consulting | 29/07/25 | | Landscape Plans | | | | | | L-01 | Cover Sheet | G | Site Design + Studios | 30/07/2025 | | L-02 | Landscape Plan | G | Site Design + Studios | 30/07/2025 | | L-03 | Planting Plan | G | Site Design + Studios | 30/07/2025 | | L-04 | Level 1 Landscape Plan | G | Site Design + Studios | 30/07/2025 | | L-05 | Planting Details | G | Site Design + Studios | 30/07/2025 | | L-06 | Existing Tree | G | Site Design + Studios | 30/07/2025 | | L-07 | Notes | G | Site Design + Studios | 30/07/2025 | | L-08 | Specification | G | Site Design + Studios | 30/07/2025 | | Reports | | Title/Description | Prepared by | Date | | BASIX Certificate 1749414M_02 | Certified Energy | 31 July 2025 | | Access Report | AI Consulting | July 2025 | | Arboricultural Impact Assessment | Jackson Nature Works | 29 July 2025 |
The Court orders:
The appeal is upheld.
Development Application DA2024/0336 for the demolition of existing structures and construction of multiple dwellings, and associated works, on Lot 1 in Deposited Plan 316581 to Lot 7 Section F in Deposited Plan 2150 (Auto Consol 3979-23), being 50 Rosa Street Oatley is determined by the grant of consent subject to the conditions set out in Annexure A.
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 amending the Development Application in the agreed amount of $12,000.00, to be paid within 28 days of the date of these orders.
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CS Reserve Group Pty Ltd ATF CS Property Trust
Georges River Council [2025] NSWLEC 1613