Janevski v Georges River Council

Category: Principal judgment

Parties: Van Janeski (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2025/80859

Publication restriction: Nil

Judgment

1. COMMISSIONER: Development consent was granted to DA2022/0001 on 14 August 2023 (DA). Modification Application No. MOD2024/0022 (MA) seeks to modify the development consent and has been refused by Georges River Council (Council).

2. The development consent provides for the erection of a dwelling house, swimming pool, retaining walls and fence, and alterations and additions to stairs, boat ramp, and seawall at land previously identified as Lot C, DP 329857, which is now legally known as Lot 1 in DP1301706; also known as 185 Queens Road, Connells Point and on certain Crown Land (Georges River).

3. The parties in the proceedings advise that the MA, as amended, seeks the following modifications to the DA (Jurisdictional Statement (JS) received by the Court on 25 July 2025):

“(a) Extension of the walk-in-robe for the master bedroom and repositioning of access to the front balcony,

(b) Enlargement of the master bedroom; and

(c) Repositioning of walls within the walk-in-robe and master bedroom.”

4. These proceedings are an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), against Council’s refusal of the MA.

Conciliation and agreement reached between the parties

5. The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conference was held on 23 July 2025. I was appointed to preside. Subsequently, the parties have advised the Court that an agreement has been reached in regard to the MA. This agreement, based on certain agreed amendments, provides for the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the MA.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined matters of relevance in these proceedings in the JS, which in part I rely on below.

Jurisdiction

7. The parties agree that it is within the Court’s power to uphold the appeal and approved the modification to the development consent as now amended. The matters requiring attention before such power is enabled are addressed below.

8. The parties agree that the proposed modification involves no or minimal environmental impact and that the provisions of s 4.55(1A) and s 4.55(3) of the EPA Act are the point of attention.

9. Having regard to s 4.55(1A)(a) of the EPA Act, I accept the advice of the parties that the proposed modification is of no or minimal environmental impact. The proposed modification is confined to changes to the first-floor master bedroom toward Queens Road, and includes an increase to the floor space in the master walk-in-robe and balcony orientated toward the street, and an increase in the master bedroom. The proposed modification results in no appreciable or significant impacts in relation to overshadowing or solar impacts beyond that approved by the development consent and with the amendments to the MA, visual privacy concerns have been addressed.

10. Having regard to s 4.55(1A)(b) of the EPA Act, I also accept the advice of the parties that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. This is clear from any holistic comparison of the development and modified development. The extent of changes are minor and the essence of the development remains a dwelling with associated aspects.\

11. The parties advise that notification has occurred in accordance with s 4.55(1A)(c) of the EPA Act and that there has been consideration of the objecting submissions in accordance with s 4.55(1A)(d) of the EPA Act. I note I also heard from neighbours on either side of the development site on the first morning of the proceedings in the course of a site inspection.

12. The rest of the statutory considerations in s 4.55(3) of the EPA Act involve further considerations of those matters in s 4.15 of the EPA Act. In the JS, the parties provide a working through of the relevant provisions of environmental planning instruments and how requirements are satisfied. I note these points in relation to the consideration of such matters by, in particular, Council as the consent authority. But there is no requirement for a finding of the Court with respect to them in this judgement. This is for two reasons. First, is that mindful of McMillan v Taylor [2023] NSWCA 183; (2023) 11 NSWLR 634 (at [62]-[65]), the question to be attended to in actioning s 34 agreements is whether there is a jurisdictional constraint to the Court’s exercise of power in accordance with the parties’ agreement, and these requirements for “consideration” are not to be thought of as jurisdictional constraints. Second, is that in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) (at pp 480-481), the Court of Appeal found that (now) s 4.55 of the EPA Act is a “free-standing provision”, released from statutory restrictions that apply under s 4.2(1)(b) of the EPA Act. As made clear in Michael Standley (at 481C), this does not mean the provisions of relevant environmental planning instruments are to be ignored, only that they do not by their construction provide a statutory bar; a relevant question for judgements relating to s 34 agreement matters.

Conclusion

13. In accordance with the above, I am satisfied that the jurisdictional pre-requisites have been met, and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

15. The Court notes that

16. Georges River Council as the relevant consent authority, for the purposes of cl 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), approves the amendment to modification application no. MOD2024/0022 in accordance with the following plans and documentation:

| Description | Reference | Date | Rev | Prepared by | | Site Plan | P-2126-A01 | 23.07.2025 | H | DA House | | Pool Level Plan | P-2126-A02 | 23.07.2025 | H | DA House | | Ground Floor Plan | P-2126-A03 | 23.07.2025 | H | DA House | | 1st Floor Plan | P-2126-A04 | 23.07.2025 | H | DA House | | Upper 1st Floor | P-2126-A05 | 23.07.2025 | H | DA House | | Roof Floor Plan | P-2126-A05A | 18.07.2025 | G | DA House | | South Elevation | P-2126-A06 | 23.07.2025 | H | DA House | | North Elevation | P-2126-A07 | 23.07.2025 | H | DA House | | West Elevation | P-2126-A08 | 23.07.2025 | H | DA House | | Section A-A | P-2126-A09 | 23.07.2025 | H | DA House | | Lift Section Section B-B | P-2126-A25 | 23.07.2025 | H | DA House | | Retainer Section Section C-C | P-2126-A26 | 23.07.2025 | H | DA House | | Louvre Details | P-2126-A27 | 23.07.2025 | H | DA House | | Shadows - June | P-2125-A30 | 23.07.2025 | H | DA House | | P-2125-A31 | 23.07.2025 | H | DA House | | P-2125-A32 | 23.07.2025 | H | DA House | | P-2125-A33 | 23.07.2025 | H | DA House | | P-2125-A34 | 23.07.2025 | H | DA House | | P-2125-A35 | 23.07.2025 | H | DA House | | P-2125-A36 | 23.07.2025 | H | DA House | | Shadows - Exist | P-2126-A20 | 23.07.2025 | H | DA House | | Shadows | P-2126-A21 | 23.07.2025 | H | DA House | | P-2126-A22 | 23.07.2025 | H | DA House | | GFA Plans - Pool Level | P-2126-A50 | 23.07.2025 | H | DA House | | GFA Plans - Ground Floor | P-2126-A51 | 23.07.2025 | H | DA House | | GFA Plans - First Floor | P-2126-A52 | 23.07.2025 | H | DA House | | GFA Plans - Upper First Floor | P-2126-A53 | 23.07.2025 | H | DA House | | Statement of Owners Consent | 23.07.2025 | | | | Statement of R Logan regarding s4.55(1A)(a) of the EP&A Act | 23.07.2025 | | | | BASIX Certificate No. 1254765S_03 | 21.07.2025 | | Van Janevski |

Orders

16. The Court orders that:

17. Leave is granted to the Applicant to amend Modification Application MOD2024/0022 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

18. The appeal is upheld.

19. Modification Application MOD2024/0022 (as amended) for alterations and additions to first floor of a dwelling house - provision of additional floor space to the first floor master suite at 185 Queens Road, Connells Point is determined by way of approval.

20. Development Consent DA2022/0001 is modified subject to the conditions of consent set out at Annexure A.

21. Development Consent DA2022/0001 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (146 KB, pdf)

Annexure B (283 KB, pdf)

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