Huang v Georges River Council

Category: Principal judgment

Parties: Qiu Yi Huang (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
M Fozzard (Applicant)
J Smith (Solicitor) (Respondent)
Solicitors:
DG Briggs & Associates (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2024/412565

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 (EPA Act) against the refusal of Development Application No2023/0585 for the demolition of the existing dwelling, and the construction of a new two storey dwelling with basement carpark, inground swimming pool and associated landscaping and fencing (the proposal), at 42 Townson Street Blakehurst (the site), by Georges River Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 April 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.

Amended application

4. 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. The plans and documents comprising the amended application as follows:

| Reference | Rev | Description | Author/Drawn | Date(s) | | DA-A000 | 08 | Drawing Schedule | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A001 | 08 | Site Analysis | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A002 | 08 | Area Calculations | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A003 | 08 | Roof Plan | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A004 | 08 | Overall Site Plan | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A005 | 08 | Ground Floor Plan | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A006 | 08 | Lower Floor Plan B1 | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A007 | 06 | Front Site Plan | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A008 | 08 | Rear Site Plan | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A009 | 06 | Cut & Fill Plan | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A010 | 08 | East Elevation | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A011 | 08 | West Elevation | Tridrops Architects Pty Limited | 14 April 2025 | | DA-A012 | 06 | North Elevation | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A013 | 06 | South Elevation | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A020 | 06 | North South Section Sheet 01 | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A021 | 06 | North South Section Sheet 02 | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A022 | 06 | East West Section Sheet 01 | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A023 | 06 | East West Section Sheet 02 | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A024 | 06 | North-South Section – Pool & Driveway Ramp | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A030 | 06 | Shadow Diagrams | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A040 | 06 | Material Schedule | Tridrops Architects Pty Limited | 1 April 2025 | | DA-A050 | 05 | Street Entrance Detail | Tridrops Architects Pty Limited | 26 August 2024 | | DA-A060 | 02 | Demolition Plan | Tridrops Architects Pty Limited | 1 April 2025 | | GW002 | 01 | Fence/Retaining Wall Elevation Drawings | Tridrops Architects Pty Limited | 1 April 2025 | | LS00 | G | Cover Page | Melissa Wilson Landscape Architects | 1 April 2025 | | LS01 | G | Site Plan | Melissa Wilson Landscape Architects | 1 April 2025 | | LS02 | G | Front Garden | Melissa Wilson Landscape Architects | 1 April 2025 | | LS03 | G | Rear Garden | Melissa Wilson Landscape Architects | 1 April 2025 | | LS04 | G | Mood Board | Melissa Wilson Landscape Architects | 1 April 2025 | | LS05 | G | Plant Species | Melissa Wilson Landscape Architects | 1 April 2025 | | LS06 | G | Notes & Typical Details | Melissa Wilson Landscape Architects | 1 April 2025 | | Report No. R23152 | 2 | Amended Geotechnical Engineering Report | Nepean Geotechnics | 25 March 2025 | | | | Clause 4.6 Variation Request | Larisa Brennan | 15 April 2025 | | 1378493S_03 | | BASIX Certificate | LC Consulting Engineers | 15 April 2025 |

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose, and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed.

6. State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the site as the site is located within the Goerges River Catchment. Part 6.2 Development in regulated catchments includes controls on development generally at Div 2, including mandatory pre-conditions to the grant of consent. I accept the Council’s assessment that the proposal’s Stormwater Management Plan and Stormwater Plans have adequately considered the requirements under Div 2. The mandatory pre-conditions are satisfied by the proposal and the condition of consent.

7. The site is zoned R2 Low Density Residential pursuant to the Georges River Local Environmental Plan 2021 (LEP 2021). The objectives of the R2 zone, to which regard must be had, are:

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

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

• To promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity.

• To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.

8. The proposal complies with the height and floor space ratio development standards under cll 4.3 and 4.4 of LEP 2021.

9. I accept the Council’s assessment that the application has satisfactorily addressed the matters under cl 6.5(3) of LEP 2021.

Contravention of the development standard under cl 6.4(3) of LEP 2021 to restrict the location of buildings within the foreshore

10. Clause 6.4(1) to (3) of LEP 2021 is in the following terms:

6.4 Foreshore area and coastal hazards and risk

(1) The objectives of this clause are as follows—

(a) to protect people and property from unacceptable risk from coastal hazards associated with climate change,

(b) to ensure that development in the foreshore area will not impact on natural foreshore processes or affect the amenity of the area,

(c) to facilitate opportunities for public access to and along the foreshore.

(2) This clause applies to the following land—

(a) land identified on the Coastal Hazard and Risk Map,

(b) land identified on the Foreshore Building Line Map.

(3) Development consent must not be granted for development on land to which this clause applies except for the following purposes—

(a) the alteration, or demolition and rebuilding, of an existing building if the footprint of the building will not extend further forward than the footprint of the existing building into—

(i) the foreshore building line, or

(ii) the land identified on the Coastal Hazard and Risk Map,

(b) the erection of a building if the levels, depth or other exceptional features of the site make it appropriate to do so,

(c) boat sheds, cycling paths, fences, sea walls, swimming pools, water recreation structures or walking tracks.

11. The parties agreed that the development is not for the alteration, demolition or rebuilding of an existing building and there are no exceptional features on the site. The application seeks to vary cl 6.4(3) of LEP 2021.

12. The foreshore building line (FBL) is 30m from the mean high-water mark (MHWM). The parties agreed that the MHWM is identified on the survey plan No 800231_A prepared by Innovative Surveying Associates.

13. The applicant provided a written request prepared by LJB Urban Planning, dated 5 March 2025, updated 15 April 2025, seeking to justify the contravention of the development standard under cl 6.4(3) of LEP 2021.

14. Clause 4.6(3) establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] “Initial Action”). The consent authority must form two positive opinions of satisfaction under cl 4.6(3). The consent authority, or the Court on appeal, must be satisfied that, (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

The applicant’s written request to contravene the development standard

15. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction.

16. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]:

17. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

18. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

19. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

20. the development standard has been abandoned by the council;

21. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

22. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).

23. The applicant’s written request justifies the contravention of the development standard under cl 6.4(3) of LEP 2021 on the bases that compliance is unreasonable or unnecessary because:

24. The additional encroachment of the proposal beyond the FBL is minor. The proposal increases the encroachment of the footprint of the dwelling by 3m2 when compared to the footprint of the existing dwelling. The proposed dwelling footprint projects forward of the BFL 8.1m to 9.8m.

25. If the proposed dwelling’s footprint is located behind the FBL, the outlook from the dwelling would be dominated by the dwellings on the adjoining properties. The positioning of the proposed dwelling allows for increased side setbacks when compared to the existing dwelling and views between the dwellings. The retention and protection of high value views towards the bay are an important planning consideration and such views would be adversely impacted by locating the proposed dwelling further to the north. The proposal is a superior planning outcome.

26. The grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action at [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24] and Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 at [78]). Therefore, the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action at [24]).

27. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant’s written request defends the exceedance of the development standard under cl 6.4(3) of LEP 2021 as justified, because the proposal achieves a better outcome for the adjoining property at 44 Townson Street by shifting the footprint to the east, when compared to the footprint of the existing dwelling. This achieves a compliant side setback to 44 Townson Street of 1.5m to increase the building separation between the dwellings and improve the visual privacy and outlook from the adjoining property. I am satisfied that justifying the aspect of the development that contravenes the development standard in this way can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action at [23].

Conclusion

21. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 15 April 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

22. The orders of the Court are:

23. The appeal is upheld.

24. Development Application No DA2023/0585 for the demolition of the existing dwelling, and the construction of a new two storey dwelling with basement carpark, inground swimming pool and associated landscaping and fencing, on Lot A of Deposited Plan 955170, known as 42 Townson Street, Blakehurst, is determined by the grant of consent, subject to conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

**********

Annexure A (318 KB, pdf)