George v City of Georges River Council

Parties: Peda George (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
H Irish (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Georges River Council (Respondent)

File Number(s): 2024/409053

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Georges River Council of Development Application DA2024/0408.

2. The Development Application, as amended, seeks consent for the demolition of the existing dwelling and construction of new a three-storey dwelling, landscaping and refurbishment of the existing swimming pool at 213 Queens Road, Connells Point NSW (legally known as Lot 2 in DP 208777) (the site).

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties on 17 and 18 February 2025. I presided over the conciliation conference.

4. At the conference, the Court heard from the owners of two neighbouring properties who objected to the Development Application. The objectors raised similar concerns about the bulk and scale of the development, the lack of landscaping, setbacks from the foreshore and the associated loss of views, privacy and solar access.

5. During the conference, the parties agreed on a range of amendments to the architectural plans, the landscaping plan and associated documentation to address the concerns being raised by objectors and by Georges River Council. The key amendments included increasing the setback of the proposed dwelling from the foreshore to better align with neighbouring dwellings, removing the proposed seawall and minimising landscaping works in proximity to the Georges River.

6. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Georges River Council has approved amending the Development Application in accordance with the amended plans and supporting material listed in the agreed conditions of consent (Part B Condition 1 in Annexure A of this judgment).

7. As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation. The objectors were also subsequently notified about the amendments to the Development Application by Georges River Council.

8. On 19 February 2025, the parties submitted an 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 granting development consent to the amended Development Application, subject to conditions in Annexure A.

9. 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.

10. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

11. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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, as set out below.

Landowner’s consent

12. In accordance with s 23(1) of the EPA Regulation, I am satisfied that the amended Development Application was lodged with the consent of the owners of the land to which the development relates.

Public Notification

13. The Development Application was publicly notified from 17 October 2024 to 7 November 2024 and 2 objections were received. The parties agree, and I accept that the matters raised by the submitters have been adequately addressed through the amended plans and conditions imposed in the development consent.

14. I also consider that the recent further amendments to the Development Application do not intensify or change the environmental impact of the amended form of the Development Application that was publicly notified, and accordingly public notification of the amended Development Application is not required.

Section 4.15 of the EPA Act

15. The parties agree, and I accept, that all of the mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration, and the Development Application (as amended) is acceptable, subject to the proposed conditions of consent in Annexure A. This includes:

16. The relevant provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).;

17. The relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP;

18. The provisions of the Georges River Local Environmental Planning 2021 (GRLEP);

19. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality;

20. The suitability of the site for the development; and

21. The issues raised in public submissions.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The site is mapped within a Coastal Environmental Area, a Coastal Use Area, and a Coastal Zone under Ch 2 Coastal Management of the Resilience and Hazards SEPP.

17. Section 2.10 provides that development consent must not be granted to development on land that is within the Coastal Environment Area unless the consent authority is satisfied that the development is designed, sited and will be managed to avoid an adverse impact on coastal values and processes.

18. Section 2.11 provides that development consent must not be granted to development on land that is within the Coastal Use Area unless the consent authority has considered a broad range of matters regarding visual amenity, access and heritage impacts.

19. Section 2.12 provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the development is not likely to cause increased risk of coastal hazards on that land or other land.

20. Based on the amended architectural, landscape and stormwater plans as well as the Statement of Environmental Effects accompanying the Development Application, the parties agree and I am satisfied that the development and its associated works will not result in any adverse impacts on the coastal environment and coastal use areas or increase the risk of coastal hazards on the site or on any other land.

21. Section 4.6 of the Resilience and Hazard SEPP requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

22. The site and broader area have a long history of residential use and there is no evidence of any potential for contamination. Consequently, the parties agree, and I am satisfied that the land is suitable for the purpose for which the development is proposed to be carried out.

23. Based on the above, the parties agree, and I accept that the requirements of the Resilience and Hazards SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. The Site is located within the Georges River Catchment. As a consequence, a number of provisions within Ch 6 of the Biodiversity and Conservation SEPP, which aims to protect the environment of the Georges River water systems, are required to be satisfied, in particular, ss 6.6 and 6.9, including whether the development will:

25. have a neutral or beneficial effect on the quality of water entering a waterway, and

26. increase the amount of stormwater run-off from the site.

27. Section 6.7 also requires consideration of whether, relevantly, the development will have a direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, and whether the development includes adequate safeguards and rehabilitation measures to protect aquatic ecology. Further, subs 6.7(2) prohibits the granting of development consent unless the 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.

28. The Construction Traffic Management Plan submitted by the Applicant and the conditions of consent in Annexure A incorporate a range of measures to avoid, minimise and manage potential impacts on the Georges River in accordance with the requirements in the Biodiversity and Conservation SEPP. The Applicant also submitted a Marine Survey which confirms the absence of seagrass, mangroves, and fish habitat in proximity to the site and the area that may be required for any marine transportation to carry out construction.

29. In addition to the above, and though not required by Ch 6 of the Biodiversity and Conservation SEPP as the development does not involve the clearing of riparian vegetation (see s 6.7(1)(b)), the Applicant may need to obtain a controlled activity approval under s 91 of the Water Management Act 2000 to use a vessel and barge for construction of the development.

30. Regardless of whether the controlled activity approval is required, s 39(6) of the LEC Act and s 8.14(4) of the EPA Act allows the Court to grant consent even if there is no consultation with an approval body.

31. Nonetheless, a condition has been imposed requiring the Applicant to obtain all necessary approvals under the Water Management Act 2000 or evidence from the NSW Department of Climate Change, Energy, the Environment and Water that no approval is needed prior to the issue of a construction certificate.

32. Having regard to the content of the Construction Traffic Management Plan, the Marine Survey, the Statement of Environmental Effects accompanying the Development Application and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the development adequately addresses the requirements of the Biodiversity and Conservation SEPP.

Georges River Local Environmental Plan 2021

31. The parties agree, and I accept that the provisions of the GRLEP have been taken into consideration in assessing the amended Development Application such that there is no jurisdictional barrier to the granting of consent to the amended Development Application. In particular, I note that:

32. The proposed development is located in the R2 Low Density Residential zone under the GRLEP and is permissible with development consent and is consistent with the objectives of the zone as required by cl 2.3 of the GRLEP;

33. Pursuant to cl 4.3, the proposed development is compliant with the maximum height of buildings of 9 metres;

34. Pursuant to cl 4.4, the proposed development is compliant with the maximum floor space ratio (FSR) for the site of 0.55:1. However, under cl 4.4A of the LEP, the allowable FSR is reduced to 0.49:1. The development has a FSR of 0.502:1 which is an exceedance of 2.5 percent of the revised development standard;

35. The amended Development Application is supported by a cl 4.6 variation which argues that the non-compliance is minor and compliance with the development standard in this case is unreasonable or unnecessary and that the development remains consistent with the overall objectives of the standard and the objective of the zone. Georges River Council does not disagree with the Applicant’s position, and I am satisfied that in this case the variation to the FSR development standard is warranted;

36. Pursuant to cl 6.1, the site is mapped as both Class 1 and Class 5 in the GRLEP Acid Sulfate Soils Map. The amended Development Application does not include works in the Class 1 soils area and is supported by a Geotechnical Investigation and Preliminary Acid Sulfate Assessment Report which conclude disturbance of any acid sulfate soils and/or lowering of the groundwater table is unlikely, and consequently meets the requirement of cl 6.1;

37. Pursuant to cl 6.2, the requirements regarding earthworks has been adequately considered, including with respect to impacts associated with the excavations for the car stacker and the lower level of the proposed dwelling;

38. Clause 6.3 seeks to avoid or minimise the adverse impacts of urban stormwater on the site, adjoining properties, native bushland and receiving waters. The amended Development Application is supported by revised stormwater plans and a stormwater management plan which will ensure that any additional stormwater generated by the new works will be appropriately managed, in accordance with the requirements of Georges River Council;

39. Pursuant to cl 6.5, the site is within land identified as “Sensitive land” on the Riparian Lands and Waterways Map. The parties agree, and I am satisfied that the development has been designed and sited to avoid adverse environmental impacts and with the implementation of the conditions of consent in Annexure A any adverse environmental impacts during construction will be appropriately minimised and managed.

40. Pursuant to cl 6.6, the site is located with the foreshore scenic protection area. The parties agree and I am satisfied that the amended Development Application adequately facilitates the matters listed in this clause, including in regard to avoiding and minimising impacts on the foreshore, no net loss of native vegetation and habitat, no clearing of steep slopes, appropriate terracing of the landscaping and minimising visual impacts on surrounding land uses;

41. Pursuant to cl 6.10, requirements regarding access to essential services have been met as there are existing connections to all these services;

42. Pursuant to cl 6.10, the development must exhibit design excellence. The parties submit, and I am satisfied that the matters under this clause have been adequately considered and addressed such that the development (as amended) achieves the necessary standard of design excellence; and

43. Pursuant to cl 6.12, the site is subject to a 25 percent landscape area requirement. The proposed landscape area is 31.8 percent of the site area and therefore complies with the development standard in cl 6.12.

Conclusion

32. Based on the Statement of Environmental Effects, various expert reports accompanying the original and amended Development Application, and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the amended Development Application can be approved taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the applicable environmental planning instruments, the likely impacts of the development, the suitability of the site, the issues raised in submissions and the public interest.

33. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

34. I have considered the jurisdictional prerequisites, 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.

35. 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.

Orders

36. The Court orders:

37. The appeal is upheld.

38. Development Application DA2024/409053 for the demolition of the existing dwelling and construction of a new three-storey dwelling, landscaping and refurbishment of the existing swimming pool at 213 Queens Road Connell Point NSW (legally known as Lot 3 in DP 208777) is determined by the grant of consent subject to the conditions contained in Annexure A.

M Young

Acting Commissioner of the Court

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Annexure A