Ji v Georges River Council

Category: Principal judgment

Parties: Jing Qiang Ji (First Applicant)
Yan Yu (Second Applicant)
Georges River Council (Respondent)

Representation: Counsel:
J Reid (Applicants)
S Lasker (Solicitor) Respondent)
Solicitors:
Fortis Law (Applicants)
Georges River Council (Respondent)

File Number(s): 2025/390109

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of a Development Application DA2025/0258 for demolition, tree removal, construction of a part two, part three storey dwelling, landscaping and associated works at 8 Beach Street, Blakehurst (Lot 544, DP 729323 and Lot 2 DP 1188970) (the Site) by Georges River Council (the Council).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 11 February 2025. I presided over the conciliation conference.

Outcome

3. At the conciliation, 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 that decision is one that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports, and the documents that are referred to in Condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Court notes that 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 (NSW) (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 11 February 2026 and are listed under Condition 1 of the conditions of consent at Annexure A. Changes made to the proposal to address the contentions include:

6. Provision of additional information to demonstrate height and FSR compliance, visual impacts, shadow analysis and view impacts

7. Lowering of the southern portion of the roof

8. Additional tree planting

9. Reduction in hard stand area, and

10. Changes to the proposed colours.

11. The parties advise that the amendments resolved the respondent’s contentions and addressed the matters raised in submissions to the respondent’s satisfaction.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

Georges River Local Environmental Plan 2021

8. The development works are for the purposes of construction of a dwelling house which is a permissible use in the R2 Low Density Residential zone in which the majority of the site is located, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP). Further the proposed development is consistent with the objectives of the R2 zone as required by cl 2.3 of GRLEP.

9. The development application proposes consent for demolition of the existing structures on site in accordance with the requirements of cl 2.7 of GRLEP.

10. The proposed development complies with the development standards for height and floor space ratio that apply to the site pursuant to cl 4.3 and cl 4.4 of GRLEP respectively having a height of 8.68m (maximum of 9m applies) and FSR of 0.32:1 (maximum of 0.33:1 applies).

11. The site is located within the flood planning area to which cl 5.21 of GRLEP applies. I am satisfied of the relevant matters outlined in cl 5.21(2) on the basis of the Flood Risk Management Plan prepared by Capital Engineering Consultants (2 February 2026). In this regard I note that approximately 10m2 of the site is affected by flood encroachment and that a flood wall is proposed to protect the area from flood.

12. The site is mapped as containing Class 3 and Class 5 Acid Sulfate Soils however the Geotechnical Investigation and Acid Sulfate Soils Assessment (Asset Geotechnical Engineering, 16 Jan 2025) submitted with the application concludes that the site does not contain actual or potential acid sulfate soils to a depth of 1.5m below ground level. Accordingly, I concur that cl 6.1 of GRLEP has been satisfied and no further consideration in this regard is required.

13. Clause 6.2 Earthworks of GRLEP also applies to the site and requires consideration of the matters listed in cl 6.2(3) including impact on drainage patterns and soil stability, impact on neighbouring site, minimisation of cut and fill etc. I am satisfied of the relevant matters on the basis of the Geotechnical Investigation Report (ESMNMAN, 25 March 2025).

14. The development application includes evidence in satisfaction of the requirements of cl 6.3(2) of GRLEP in the form of Stormwater Management Plans (Capital Engineering Consultants, 2 February 2026) which outline the proposed stormwater management system, sediment and erosion control measures etc.

15. The site partly includes land identified on the Coastal Hazard and Foreshore Map in accordance with cl 6.4 of GRLEP however no development is proposed in the area so identified.

16. The site is also partly identified on the Riparian Land and Waterways Map to which cl 6.5 of GRLEP applies. Similarly, no development is proposed on the land identified under this provision therefore the provision is not relevant in this instance.

17. The site is further identified as being within the Foreshore Scenic Protection Area to which cl 6.6 of GRLEP applies. I am satisfied that the proposed development is consistent with the provisions of cl 6.6 on the basis of the amended architectural plans (M Cubed Architects, 2 February 2026), the parties’ agreement and the proposed landscape plan (Outside Design Group, 11 February 2026). In this regard I note that the proposal has been amended to preserve the existing rock outcrops on site and to provide additional tree planting.

18. Under cl 6.9 of GRLEP consent cannot be granted unless essential services are available to the development or adequate arrangements have been made to make them available when required. Essential services are available to the existing development on site and on this basis I am satisfied that relevant services are available to the proposal.

19. Clause 6.10 of GRLEP requires that the proposed development achieve design excellence. The planning experts agree that the proposal achieves design excellence and I am therefore so satisfied.

20. Evidence is also provided that the proposed development provides for a landscape area of 49.9% of the site area in accordance with the requirements of cl 6.12(5)(b) of GRLEP which requires a minimum landscape area of 25% of the site area in the Foreshore Scenic Protection Area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies in respect of tree removal. The proposal, consistent with s 2.6, seeks consent for tree removal therefore no further assessment in this regard is required.

22. The site falls within the Georges River Catchment under the BC SEPP, such that Pt 6.2 applies to the development application. Evidence exists in the form of amended stormwater plans prepared by Capital Engineering Consultants (2 February 2026) to satisfy the matters outlined in ss 6.6 Water Quality and Quantity, 6.7 Aquatic Ecology, 6.8 Flooding and 6.9 Recreation and Public Access of the BC SEPP. In particular I note that the proposed development is shown to have a beneficial impact on the quality of water entering the Georges River with a 32.6% reduction in the total suspended soils and 63.1% reduction in gross pollutants.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. The site is located within the Coastal Environment Area and Coastal Use Area under Pt 2.2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). I am satisfied that consideration has been given to the matters required by ss 2.10 and 2.11, having regard to the amended architectural plans (M Cubed Architects, 2 February 2026), landscape plans (Outside Design Group, 11 February 2026) and the Visual Impact Assessment Report (January 2026).

24. I am also satisfied that consideration has been given as to whether the site is contaminated as required by s 4.6 of the RH SEPP as outlined in the Statement of Environmental Effects (BMA Urban, April 2024). As the site has historically been used for residential purposes, the parties consider, and I accept, that it is unlikely to be contaminated.

State Environmental Planning Policy (Transport and Infrastructure) 2021

25. The proposal was referred to Ausgrid in accordance with the requirements of s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) as the site is located within proximity of underground electricity wires. Ausgrid provided a referral response including conditions of consent which have been included in the agreed draft conditions. Accordingly, the requirements of the provision have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2022

26. The proposal is ‘BASIX development’, pursuant to Sch 7 of the EPA Reg, and accordingly the standards set out in Sch 1 of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SB SEPP) apply. An amended BASIX Certificate prepared by Noura Al Hoazzouri (Cert No. 1793171S_02 dated 11 February 2026) has been submitted as required by s 27 of the EPA Reg. Further, the BASIX Certificate includes quantification of the embodied emissions of the proposal in accordance with s 2.1(5) of the SB SEPP.

Other matters

27. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

28. The development application was notified between 12 June and 26 June 2025 and one (1) submission was received. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submission.

Conclusion

29. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

30. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

31. The Court orders that:

32. The appeal is upheld.

33. Development Application DA2025/0258 for the demolition, tree removal, construction of a part two, part three storey dwelling, landscaping and associated works at 8 Beach Street, Blakehurst being Lot 544 in Deposited Plan 729323 and Lot 2 in Deposited Plan 1188970 is determined by the grant of consent subject to conditions of consent at Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (380 KB, pdf)

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