Kerem v Georges River Council

Category: Principal judgment

Parties: Fikri Kerem (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
J Reid (Respondent)
Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s): 2025/265398

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Georges River Council, of Development Application DA2025/0172 which seeks consent for the demolition of existing structures and construction of a multi-level dwelling house including a swimming pool and boatshed at 22 Pleasant Way, Blakehurst, Lot 11 DP 207914.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 2 December 2025.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

6. 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. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

7. The development application was made with the consent of the owner of the land.

8. The application was adequately notified from 1-15 May 2025. One submission was received, and the same submitter gave oral representations at the commencement of proceedings. Based on the amended application the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to GRLEP cl 4.3, a maximum building height of 9m applies to the subject site. The proposed development exceeds this development standard with a maximum height of 10.06m.

11. Pursuant to GRLEP cl 4.6, the applicant has submitted a request to vary the height of buildings development standard, prepared by BMA Urban dated 11 November 2025. From this written request, I am satisfied that compliance with the development standard is unreasonable or unnecessary in these circumstances because the proposed development complies with the relevant objectives of the height of buildings development standard, notwithstanding the non-compliance. Further, the applicant has demonstrated there are sufficient environmental planning grounds to justify breaching the development standard because: the proposed variation will not be highly perceptible from the public domain; it is the direct result of the topography of the site; and the proposed variation does not result in any significant or unreasonable amenity impact to adjoining properties.

12. GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.55:1, however pursuant to cl 4.4A(2), the site is mapped ‘Area 1’ on the Floor Space Ratio map, which results in a reduced maximum FSR of 0.404:1 The proposed development complies with this development standard with a maximum FSR of 0.3902:1.

13. GRLEP cl 5.7 requires that no development be carried out below the mean high water mark of any body of water subject to tidal influence. The survey provided as part of the amended application demonstrates that, as amended, no work is proposed below the mean high water mark.

14. Pursuant to GRLEP cl 6.1 Acid Sulfate Soils, the site is identified as Class 5, on the Acid Sulfate Soils Map. Based on the parties’ submission and the Geotechnical and Acid Sulfate Soils Assessment Report by AE Engineers dated 3 February 2025, I accept that the proposed construction will neither intersect with any Acid Sulfate Soils nor lower the groundwater levels. On that basis, an Acid Sulfate Soils Management Plan is not required and the provisions of cl 6.1 are met.

15. Pursuant to GRLEP cl 6.2, the parties submit, and I accept that the matters pertaining to earthworks have been adequately considered, as supported by the amended application.

16. The amended application is supported by revised stormwater plans and documentation. From these documents, the Statement of Environmental Effects by BMA Urban dated February 2025 (SEE), and the parties’ submission, I accept that the stormwater management of the development meets the requirements of GRLEP cl 6.3.

17. GRLEP cl 6.4, Foreshore area and coastal hazards and risk, applies to the site as it adjoins the foreshore of Oyster Bay. The proposed boatshed is permissible pursuant to this clause, and from the SEE and the parties’ submission I accept that the matters listed at 6.4(4) have been considered, and the proposed works are acceptable.

18. The site is mapped as ‘sensitive land’ pursuant to GRLEP cl 6.5 Riparian land and waterways. From the parties’ submission and the amended application, I accept that the matters listed in cl 6.5(3) have been considered. I further accept that the development is designed, sited, and will be managed to avoid significant adverse environmental impact, or if it cannot be reasonably avoided the development is designed, sited and will be managed to minimise or mitigate that impact as required by cl 6.5(4).

19. Pursuant to the requirements of GRLEP cl 6.6, this site is identified as ‘Foreshore scenic protection area’. From the parties’ submissions and the amended application, I accept that the development facilitates the requirements listed in cl 6.6(3).

20. Based on the parties’ submissions, the stormwater plans and the fact that the existing residential dwelling is fully serviced, I accept that all essential services are available, or that adequate arrangements have been made to make them available as required by GRLEP cl 6.9.

21. Pursuant to GRLEP cl 6.10, the consent authority must consider that the development exhibits design excellence through having regard to the matters listed in cl 6.10(5). From the parties’ submission and the amended application, I accept that when considered against the cl 6.10(5), the proposed development exhibits design excellence for the purposes of GRLEP cl 6.10.

22. Pursuant to GRLEP cl 6.12 (landscaped areas in certain residential and conservation zones), based on the parties’ submission and the amended landscape plans, I accept that the landscaped area exceeds the minimum 25% landscaped area requirement, and that the development satisfies the requirements listed in cl 6.12(4).

23. As the site is identified as being within a Coastal Environment Area and Coastal Use Area pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), Ch 2 of this SEPP applies. From the parties’ submission and the information contained in the amended application, I accept that the proposed development satisfies the requirements of ss 2.10, 2.11 and 2.12 of the SEPP R&H. Further, as no coastal management plan currently applies to the site, s 2.13 is also satisfied.

24. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the SEE, I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use.

25. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022, the proposal is a BASIX affected development. Accordingly, the application was accompanied by a BASIX certificate which the parties submit, and I accept, is satisfactory.

26. The site is located within the Georges River Catchment and accordingly, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies. Based on the amended application and the parties’ submission, I accept that the requirements of Ch 6 relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met by the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10). As the site is located within 100m of a natural waterbody, I also accept that the proposed boatshed indicates a water-dependent use, however conflicts between land uses have been minimised (s 6.11).

27. Ausgrid were given written notice of the development as required under s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, as the development proposes works near existing electrical assets. Written confirmation was provided by Ausgrid that they have no objection to the proposed development, subject to conditions of consent that have been incorporated into Annexure A.

Conclusion

28. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

29. The Court notes:

30. The Georges River Council, as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, to the applicant amending Development Application DA2025/0172 in accordance with the documents listed below:

| Amended Architectural Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Cover Page | A001 | N | 2.12.25 | Resolut | | Sediment & Soil Erosion Plan | A002 | N | 2.12.25 | Resolut | | Existing / Demolition Plan | A003 | N | 2.12.25 | Resolut | | Site Analysis Plan | A004 | N | 2.12.25 | Resolut | | Site Plan | A100 | N | 2.12.25 | Resolut | | Undercroft Floor Plan | A101 | N | 2.12.25 | Resolut | | Lower Ground Floor Plan | A102 | N | 2.12.25 | Resolut | | Ground Floor Plan | A103 | N | 2.12.25 | Resolut | | First Floor Plan | A104 | N | 2.12.25 | Resolut | | Roof Plan | A105 | N | 2.12.25 | Resolut | | Building Section - Sheet 1 | A201 | N | 2.12.25 | Resolut | | Building Section - Sheet 2 | A202 | N | 2.12.25 | Resolut | | Swimming Pool Details | A205 | N | 2.12.25 | Resolut | | Fencing Detail | A210 | N | 2.12.25 | Resolut | | Boat Shed | A220 | N | 2.12.25 | Resolut | | Deep Soil Calculation Plan | A230 | N | 2.12.25 | Resolut | | Landscape Calculation | A240 | N | 2.12.25 | Resolut | | Elevations Sheet 1 | A301 | N | 2.12.25 | Resolut | | Elevations Sheet 2 | A302 | N | 2.12.25 | Resolut | | 3D Perspective views | A501 | N | 2.12.25 | Resolut | | 3D Perspective views | A502 | N | 2.12.25 | Resolut | | Winter solstice shadow diagrams | A601 | N | 2.12.25 | Resolut | | Equinox Shadow | A602 | N | 2.12.25 | Resolut | | Under croft & LG Area Calculation | A701 | N | 2.12.25 | Resolut | | GF & L1 Area calculation | A702 | N | 2.12.25 | Resolut | | Building Height limit Diagram | A801 | N | 2.12.25 | Resolut | | Window calculation – rear facade | A802 | N | 2.12.25 | Resolut | | Schedule of Materials and Finishes | - | - | - | Resolut | | Amended Landscape Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Title Page | L-01 | D | 2.12.25 | Site Design + Studios | | Site Plan | L-02 | D | 2.12.25 | Site Design + Studios | | Front Yard Landscape Plans | L-03 | D | 2.12.25 | Site Design + Studios | | Rear Yard Landscape Plans | L-04 | D | 2.12.25 | Site Design + Studios | | North Elevation (Front) | L-05 | D | 2.12.25 | Site Design + Studios | | Planting Details | L-06 | D | 2.12.25 | Site Design + Studios | | Notes | L-07 | D | 2.12.25 | Site Design + Studios | | Specification | L-08 | D | 2.12.25 | Site Design + Studios | | Amended Stormwater Plans | | Plan name | Drawing ref | Revision | Date | Prepared by | | Undercroft Floor Level | SW10 | D | 2.12.25 | Resolut | | Lower Ground Floor Level | SW20 | D | 2.12.25 | Resolut | | Ground Floor Level | SW30 | D | 2.12.25 | Resolut | | First Floor Level | SW40 | D | 2.12.25 | Resolut | | Roof Level | SW50 | D | 2.12.25 | Resolut | | Erosion & Sediment Control Details | SW60 | D | 2.12.25 | Resolut | | Stormwater Sections & Details Sheet 1 | SW70 | D | 2.12.25 | Resolut | | Stormwater Sections & Details Sheet 2 | SW80 | D | 2.12.25 | Resolut | | Amended Survey Plan | | Plan name | Drawing ref | Revision | Date | Prepared by | | Plan Showing Detail & Levels Lot 11 in DP207914 | 5163 | C | 28.11.25 | Masri Survey Group Pty Ltd | | Amended Reports | | Report name | Ref | Revision | Date | Prepared by | | Aboricultural Impact Assessment | 22PWB2 | N/A | 31.10.25 | Hugh the Aborist | | DA Stormwater & OSD Documentation Checklist | N/A | N/A | 9.10.25 | Consulting Engineers | | Stormwater Statement in relation to cl 6.6 of the LEP | REF: D24258.SWA1 | N/A | 7.10.25 | Consulting Engineers | | Stormwater Compliance Statement | DA Reference: DA2025/0172 | N/A | 19.11.25 | Consulting Engineers | | Amended Geotechnical Investigation and Assessment Report | G23005 | B | 25.11.25 | A.E Geotechnical Pty Ltd | | Geotechnical Statement in relation to cl 6.2 of the LEP | N/A | N/A | N/A | A.E Geotechnical Pty Ltd | | Clause 4.6 Variation Request (Height of Buildings) | N/A | N/A | 11.11.25 | BMA Urban | | Bushfire Assessment Report | RG20250923 | N/A | 23.9.25 | Apical Bushfire and Planning | | Visual Impact Assessment Report prepared by Urbaine Design Group | N/A | N/A | 23.10.25 | Urbaine Design Group | | Amended BASIX certificate | Certificate number: 1780548S_02 | N/A | 2.12.25 | Mr Kexuan Sun |

30. The Court orders:

31. The appeal is upheld.

32. Development Consent is granted to Development Application DA2025/0172 for demolition, excavation, construction of a dwelling house, swimming pool, boat shed, landscaping and site works at 22 Pleasant Way, Blakehurst, Lot 11 DP 207914, subject to the conditions set out in Annexure A.

E Washington

Commissioner of the Court

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Annexure A (355 KB, pdf)