Elgammal v Georges River Council

Cases Cited: Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Texts Cited: Georges River Council, Community Engagement Strategy, June 2025

Category: Principal judgment

Parties: Yasser Elgammal (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
H Grace (Respondent)
Solicitors:
One Group Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2025/148414

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Review application REV 2024/0042 (Review Application) to Modification Application MOD 2024/0035 (Modification Application) lodged with the Respondent on 9 December 2024. The Class 1 Application, as filed on 16 April 2025, erroneously refers to s 8.7 of the EPA Act. The Applicant has filed an amended Application Class 1 on 9 September 2025 to refer to s 8.9 of the EPA Act.

2. The Modification Application sought approval to modify DA 2020/0430 for a proposed concrete hob, new external stairs to access the waterfront and an addition to an existing rumpus room within the approved dwelling at No 26 Bowden Crescent, Connells Point, legally identified as Lot 13 DP 14844 (Site).

3. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 8 and 9 September 2025. I presided over the conciliation conference.

4. The parties’ Town Planning experts Alison McCabe for the Applicant and Kim Johnston for the Respondent prepared, and the Respondent filed on 20 August 2025, a Joint Expert Report Town Planning.

5. The Applicant requested the Council’s ‘approval’ pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) to amend the Modification Application to rely upon the following drawings and documents:

6. Drawings 02F, 03E, 04E, 06E, 07E prepared by C.M.Hairis Architects dated 8 and 9 September 2025;

7. Structural Design Certificate prepared by A.E Consulting Engineers Pty Limited (Ref: S21299.DC2) dated 1 September 2025; and

8. Survey prepared by C&A Surveyors, Ref: 32114-24 ASB, dated 22 August 2025.

9. The Council has approved the amendment to the Modification Application pursuant to s 113(4) of the EPA Regulation (Amended Modification Application).

10. As the Modification Application is the subject of Court proceedings, the Amended Modification Application is not required to be lodged on the NSW Planning Portal (see s 113(6) of the EPA Regulation).

11. The Amended Modification Application seeks to modify the Development Consent by:

12. Modifying the Lower Ground Floor of the approved dwelling by:

(a) Approving the use of an area comprising 6.45m within the approved structural walls for use only for a WC and part laundry. The area is shaded green on Drawing 02F. The ‘as built’ structural walls approved by the Construction Certificate are shown red; (b) Approving the re-arrangement of the use of floor space within the lower ground floor as shown on Drawing 02F shaded pink for use as part of the rumpus room and a hallway to the WC and laundry facilities; (c) Modifying the approved Lower Ground Floor Plan to increase the size of the Rumpus Room by 12.62m2 and installing bifold doors to the north east façade; (d) Approving the use only of the decorative trim around the opening for the new bifold doors on the Lower Ground Floor and the dimensions and locations of the windows on the southern elevation Ground Floor as marked in green; and

2. Modifying the hard landscape treatment of the rear yard by approving the following prospective works:

(a) Replacing the previously demolished curved retaining wall to the south east with a concrete hob and glass balustrade; (b) Floating access stairs to the pool level with glass balustrade and pool gate at the bottom of the stairs.

3. The existing window to the Rumpus Room (W04/LG) is to be fixed, rather than operable, as condition on the use of the rumpus room. The Modification Application does not seek consent for the construction of that window, which has already been built.

4. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions (SOFAC) have been resolved by the preparation of the:

5. Amended plans and documents referred to at [49(1)];

6. Agreed conditions of consent;

7. Inspection of the Site; and

8. Consideration of submissions received during the notification period and on Site on 8 September 2025.

9. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification to the consent subject to conditions.

10. The ‘rear’ boundary (facing Connel’s Bay) of the Site is defined by the mean high water mark (MHWM) on Deposited Plan 14844. Pursuant to s 36(2)(a) of the Surveying and Spatial Information Act 2002 (NSW) and cl 41(7)(b) of the Surveying and Spatial Information Regulation 2024 (NSW) the line shown on the deposited plan is adopted as the ‘natural’ line has changed over time due to development rather than accretion or erosion.

11. The Modification Application is supported by Survey information defining the rear boundary at Tabs 7, 8 and 17 of the Class 1 Application and the ‘As built’ survey prepared by C&A Surveyors. The stairs in the Amended Modification Application have been narrowed from 1200mm to 900mm, which are wholly within the Site.

12. For abundant caution, a condition has been included by the parties confirming that the development consent does not authorise any works between the rear boundary of the Site, being the MHWM nominated on Deposited Plan 14844 and Connells Bay. The MHWM is also shown on the plans and all works subject of the Amended Modification Application are within the Site.

13. The Modification Application and the Review Application were initially lodged with Council by Mr Constantine Hairis, Architect as agent for Mr Elgammal. Mr Elgammal’s written owners consent is at Tab 13 of the Class 1 Application and he is the Applicant to these Proceedings.

14. The parties have agreed that the proceedings ought to be disposed of by the Court in accordance with the s 34 Agreement between the parties made under s 34(3) of the LEC Act.

15. 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.

16. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to approve a modification to a development consent.

17. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court together with an Applicant’s bundle as an aide memoire.

18. The Court is to determine this matter in accordance with the terms of s 4.55(1A) of the EPA Act which provides as follows:

(1A) Modifications involving no or minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the proposed modification is of no or minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (2) do not apply to such a modification.

No or minimal environmental impact

20. Pursuant to s 4.55(1A)(a) of the EPA Act, the consent authority may modify the Development Consent if it is satisfied that the proposed modification is of no or minimal environmental impact. I am satisfied that the Modification Application will result in no or minimal environmental impacts for the following reasons:

21. The proposed modification includes internal layout changes to the Lower Ground Floor that are located within the approved development footprint.

22. The extension of the glass line to the Rumpus Room will continue to present as an ‘undercroft’ and it is agreed that there is no or minimal visual impact from any neighbouring property or the adjoining water way.

23. The use of the windows in the southern elevation will not have any environmental impact. The Rumpus Room window has a lower bottom sill height which eliminates any view to the neighbouring property. The window is now to be a fixed window, which will have less impact than the larger, approved operable window that previously served the terrace above the BBQ/outdoor kitchen area.

24. The additional floor area will have no or minimal environmental impact, particularly when considered in the context of the objectives of the floor space ratio (FSR) development standard at cl 4.4A of the Georges River Local Environmental Plan 2021 (GRLEP) which provides:

(a) to ensure that the bulk and scale of development are compatible with the size of the lot,

(b) to promote good residential amenity.

5. The proposal will increase the amenity of the dwelling house with no impact consequential impact on neighbours. The bulk and scale of the dwelling house remains compatible with the size of the lot.
6. The proposed hob and balustrade have the effect of reducing the usable lawn area adjacent the lower ground floor than the previous built structure that was otherwise required to be retained when the Development Consent was originally granted.
7. The proposed stairs will provide access to the lower pool level and have been designed parallel to the rock ledge rather than the previously approved stairs that projected toward the water. The conditions of consent require the floating stairs to be constructed of a textured concrete in the colour ‘Alabaster’ to ensure that they are recessive in nature. The stairs will have no or minimal environmental impacts.

Substantially the same development

21. On 7 October 2021, the original Development Application DA 2020/0430 granting development consent to ‘demolition works, construction of a dwelling house (existing boathouse and swimming pool to be retained)’, currently under construction at the Site.

22. On 20 October 2022, DA 2020/0430 was modified in Modification Application MOD 2022/0136 pursuant to s 4.55(2) of the EPA Act to change the approved levels, openings, stairs and fencing and add an external stair and solar panels.

23. On 6 September 2023, a Building Information Certificate (Application No: 149D2023/0030) was issued by the Respondent for Unauthorised Works - 10 Southernmost part of the retaining wall constructed beyond the MHWM. This portion of wall adjoins the northern (rear) wall of the existing boatshed on the site.

24. On 29 November 2023, a Building Information Certificate was issued by the Respondent (Application No: 149D2023/0079) for the unauthorised construction of a concrete pathway and steps along the western (side) boundary and the modification to a retaining wall and low height retaining wall (planter box) in the southern part of the rear yard. This retaining wall adjoins the rear and western side walls of the existing boatshed on the site.

25. On 10 May 2024, Modification Application MOD 2024/0035 to DA 2020/0430 pursuant to s 4.55(1A) of the EPA Act was lodged with the Respondent for a concrete hob/retaining wall, new stairs and an addition to the approved rumpus room. A notice of determination was issued by the Respondent on 29 October 2024 refusing consent. Council, under delegated authority, determined to confirm its decision of refusal in Review Application REV 2024/0042 on 3 March 2025.

26. In the recent decision of Chief Justice Preston in Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31, the Court found that whilst there may be quantitative and qualitative differences between a modification application and original consent, the focus of the test in s 4.55(2) of the EPA Act (which is the same as the test in s 4.55(1A)(b)) should be “a holistic one of the two developments being compared” and assess the overall ‘balance’ between the original and modified development.

27. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified on a quantitative and qualitative assessment for the following reasons:

28. The plans approved by the original grant of the Development Consent are extracted in the approved plan set at Tab 8 of the Applicant Bundle. A comparison of the lower ground floor drawing 2D and the proposed modification at 2F show a modest increase in floor space to increase the amenity of the dwelling without increase to the footprint of development and a minor adjustment to the approved window size and location on the southern elevation. Both qualitatively and quantitatively, the modification of the lower ground floor results in substantially the same development as that originally granted.

29. The original Development Consent contemplated retention of the existing retaining walls in the location of the proposed hob. The wall was demolished during construction due to its instability. The replacement hob will perform a similar function.

30. The original grant of Development Consent also contemplated the retention of the existing stairs which have since been demolished. The replacement stairs similarly provide access to the lower level, but have been designed to be more recessive in appearance. Both qualitatively and quantitatively the modification is substantially the same development.

31. The proposed glass balustrade is required for the existing swimming pool on the site and by Condition 10(5) (Required design changes) of the development consent DA 2020/0430 dated 7 October 2021 (and the Modified consent issued on 20 October 2022), which provides as follows:

“5) Details, including an elevation and materials detail are to be provided to the satisfaction of the Principal Certifying Authority. These details are to show a transparent or open fence compliant with pool fencing requirements of a height not greater than 1.2m for its length in the position shown on the Landscape Plan Drawing No. SB_26BC_10 Issue B on the plan titled “Lower Ground Floor Plan”.”

5. The glazed balustrade on top of the hob has not changed from that required by Condition 10(5) of the development consent which required a transparent or open fence compliant with pool fencing requirements (McCabe, JER at 68)

Notification and consideration of submissions

28. The Modification Application was notified for more than 14 days in May 2024 in accordance with the Council’s “Community Engagement Strategy”, and again on the Review Application. The submissions received are at Tabs 12 and 13 of the Council Bundle of Documents filed 1 September 2025. I have also added to the Council Bundle at the end of Tab 13 the 2 written submissions dated 3 and 4 September 2025 from Mr Blackburn and Ms Andrews of 28 Bowden Crescent.

29. The amendments made on 8 and 9 September 2025 are not required to be notified by neither the Regulations nor the Community Engagement Strategy.

30. To the extent that the submissions made are relevant to the Modification Application, the parties have considered the submissions and the Court has had the benefit of considering the written submissions reproduced in the Council bundle and the oral submissions made by Dr Sader of 24 Bowden Crescent, Connel’s Point and those of Mr Layman, town planner and architect made on Dr and Mrs Sader’s behalf.

31. 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. I adopt the reasons given by the parties as set out in this judgment.

32. 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.

Notations:

33. The Court notes:

34. Georges River Council as the relevant consent authority, for the purposes of s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment to modification application no. MOD2024/0035 in accordance with the following plans and documentation:

| Description | Ref | Date | Rev | Date | | Proposed Site & Roof Plan | 01E | 08/9/25 | E | C.M. Hairis Architects | | Proposed Lower Ground Floor Plan | 02F | 08/9/25 | F | C.M. Hairis Architects | | Proposed Concrete Hob, External Stairs and Rumpus Addition (to replace ‘Proposed South Elevation (Rear)' on approved drawing 5C). | 03E | 08/9/25 | E | C.M. Hairis Architects | | Proposed West Elevation & Sections AA, 3 and 4 (replaces the approved West Elevation on approved drawing 5C). | 04E | 08/9/25 | E | C.M. Hairis Architects | | Proposed Section AA | 05E | 08/9/25 | E | C.M. Hairis Architects | | Proposed details 1 and 2 | 06E | 08/08/25 | E | C.M. Hairis Architects | | Proposed details 3 and 4 | 07E | 08/09/25 | E | C.M. Hairis Architects | | Survey Plan | 32114-24 ASB | 22/08/2025 | - | C&A Surveyors |

2. A copy of the plans and documents referred to above were filed with the Court on 9 September 2025.

Orders:

34. The Court orders:

35. The appeal is upheld.

36. Development Consent No. DA 2020/0430 for demolition works and construction of a dwelling house (existing boathouse and swimming pool to be retained) is modified pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) in the terms in Annexure A.

37. Development Consent No. DA 2020/0430 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

Annexure A (174 KB, pdf)

Annexure B (265 KB, pdf)

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