Estia Investments Pty Ltd v Georges River Council

Parties: Estia Investments Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
K Garnock (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/475079

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. DA2023/0379, for subdivision of three (3) existing lots into two (2) lots (the proposal), at 392-394 and 394A Princes Highway, and 4 Torrens Street, Blakehurst (the site), by Georges River Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 October 2025. I presided over the conciliation conference. 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. 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

Pre-conditions to the grant of consent

State Environmental Planning Policy (Resilience and Hazards) 2021

4. I accept the Council’s assessment that the site is suitable for the development pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 392 - 394 Princes Highway, Blakehurst adjoins a service station and the vacant portion of this lot, which is proposed to be amalgamated, formerly contained a single storey aged care facility. As part of a previous development application, a Site Investigations, a Remediation Action Plan and a Validation Report were prepared prior to occupation of the aged care facility. These reports confirm the site’s suitability for residential use. As part of the application, a Preliminary Site Investigation was prepared in respect of the remaining lots on the site. Any future application for development on the proposed lots will be accompanied by an Environmental Site Assessment and Remediation Action Plan (if required).

State Environmental Planning Policy (Transport and Infrastructure) 2021

5. I am satisfied that the application complies with Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). Section 2.119 of the Transport and Infrastructure SEPP requires that a consent authority be satisfied with certain matters in relation to the safety and efficiency of access to developments from a classified road before consent can be granted. In this respect, the parties submitted the following:

6. Vehicular access to the Site is provided by a road other than the classified road (the existing driveway crossover on Torrens Street);

7. The safety, efficiency and ongoing operation of the classified road will not be affected by the development; and

8. Any future development on the site of a type that is sensitive to traffic noise or emissions will be appropriately located and designed, or include measures to ameliorate potential traffic noise or vehicle emissions within the site arising from the adjacent classified road, and will be assessed as part of a future development application.

9. As the application is for subdivision of three into two lots with no works proposed, the development is not considered 'Traffic-generating development' for the purposes of s 2.122 of the Transport and Infrastructure SEPP. Accordingly, referral to TfNSW is not required.

Georges River Local Environmental Plan 2021

7. The site is zoned R4 High Density Residential pursuant to Georges River Local Environmental Plan 2021 (LEP 2021). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To enable other land uses that contribute to the vibrancy of the neighbourhood while ensuring that business centres remain the focus for business and retail activity.

• To encourage development that maximises public transport patronage and promotes walking and cycling.

8. The minimum lot size development standard for the site is 1,000m2 pursuant to cl 4.1 of LEP 2021. The application will result in two lots; one 3,684m2 (proposed Lot 2272) and the other 2,364m2 (proposed Lot 2271).

Conclusion

9. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 October 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

10. The orders of the Court are:

11. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application on 24 September 2025, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $10,000, within 28 days of these orders.

12. The appeal is upheld.

13. Development Application No. 2023/0379, for the subdivision of three existing lots into two lots, at 392-394 and 394A Princes Highway, and 4 Torrens Street, Blakehurst, is determined by the grant of consent, subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (689 KB, pdf)

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