Kotevski v Georges River Council

Category: Principal judgment

Parties: Tony Kotevski (First Applicant)
Elizabeth Kotevsi (Second Applicant)
Georges River Council (Respondent)

Representation: Counsel:
D Loether (Solicitor) (Applicants)
R O’Gorman-Hughes (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicants)
Georges River Council (Respondent)

File Number(s): 2025/270520

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) by Tony Kotevski (Applicant). The appeal was lodged based on the deemed refusal of an application being considered by Georges River Council (Respondent). The Respondent subsequently determined the application by way of refusal on 17 July 2025. The application, the subject of this appeal, is Development Application DA2024/0601 lodged with Georges River Council on 6 January 2025.

2. The development application seeks consent for the demolition of existing structures, alterations and additions to an existing detached garage to construct a detached carport and garage, and the construction of a part two (2) storey/part (3) storey dwelling house, a swimming pool and other ancillary site works.

3. The amendments to the original application reduce the impacts of the proposed development by, amongst other things, making it comply with the relevant height and floor space ratio controls, increasing the setback of the ground floor from the foreshore, and deleting the proposed alterations and additions to the existing garage.

4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (the LEC Act). The conciliation conference commenced on 9 December 2025.

5. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.

6. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

8. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one 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). In reaching that state of satisfaction, I note the following:

9. Owner’s consent has been supplied.

10. Pursuant to the Georges River Local Environmental Plan 2021 (GRLEP), the subject site is zoned R2 Low Density Residential. The proposed development is permissible in this zone. Regard has been given to the R2 zone objectives in determining the application.

11. Clause 6.1 of the GRLEP provides objectives and controls to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. The Site is located on land mapped as Class 5 Acid Sulfate Soils. The proposed works are not likely to lower the water table below 1 metre AHD. The parties agree that a soil management plan is therefore not required.

12. Clause 6.3 of the GRLEP provides objectives and controls to minimise the impacts of urban stormwater on land, adjoining properties and receiving waters. The parties agree that the consent authority can be satisfied of the matters set out in clause 6.3(2) as the DA, as amended, is supported by stormwater engineering plans that address the issues. The plans confirm that the development has been designed with permeable surfaces on as much of the site as is possible. The design also minimises the adverse impacts of stormwater runoff on adjoining properties through provision of overland flow mechanisms.

13. Clause 6.4 Foreshore Area and Coastal Hazards and Risk**,** provides objectives and controls to protect people and property from unacceptable risk from coastal hazards and to ensure that development in a foreshore area will not impact on natural processes or affect the amenity of the area. Part of the Site is identified on both the Coastal Hazard and Risk Map and the Foreshore Building Line Map.

14. The parties agree that the DA, as amended, proposes the construction of a new residential dwelling outside of the foreshore building line. The proposal includes the construction of a new swimming pool and access staircase, both of which are permissible within the foreshore building line, with consent pursuant to cl 6.4(3) of the GRLEP.

15. A small portion of the site at the rear is affected by the Coastal Hazard Area. The DA, as amended, proposes a swimming pool within the Coastal Hazard Area, but these works are expressly permitted under cl 6.4(3)(a) of the GRLEP. The parties agree, and I am satisfied, that the required assessments have been made.

16. Clause 6.5 – Riparian Land and Waterways of the GRLEP provides objectives and controls to protect and maintain water quality and ecological processes within waterways and riparian areas. The development is designed, and will be managed, to avoid significant adverse environmental impacts, as required by cl 6.5(4).

17. Clause 6.6 – Foreshore Scenic Protection Area provides objectives and controls to protect, maintain and improve the scenic amenity, significant views and native vegetation of the Goerges River and Foreshore. The Site is within the area identified as ‘Foreshore scenic protection area’ on this Map.

18. The parties agree, and I am satisfied, that the matters set out in cl 6.6(3) have been satisfied. This is achieved as the DA;

(a) Responds to the natural characteristics of the Site through a stepped development to accommodate the natural sloping topography of the land; (b) Will not unreasonably impede on views to and from the Georges River Foreshore as demonstrated in the View Impact Analysis Report dated 25 November 2025; (c) Provides for 267.3m² of landscaped area, comprising 33% of the site which is in excess of the required 25% pursuant to cl 6.12 of the GRLEP; and (d) As a result of the landscape solution (which includes the retention of trees and further plantings) as outlined in the Landscape plans prepared by Apex Studios, Revision C, dated 4 December 2025.

11. Pursuant to cl 6.9 Essential Services, of the GRLEP, Development Consent must not be granted to development unless the consent authority is satisfied that the relevant services, that are essential for the development, are available or that adequate arrangements have been made to make them available, when required. The parties agree, that as a result of the pre-existing residential nature of the Site, the Site is already connected to the required essential services. The parties agree that the Court can be satisfied that the DA, as amended, satisfies the relevant requirements under cl 6.9 of the GRLEP.
12. The Site is subject to the design excellence provisions at cl 6.10 of the GRLEP as the Development Application relates to a dwelling house situated within the Foreshore Scenic Protection Area. Clause 6.10(5) sets out a number of matters that the consent authority must have regard to in considering whether the development exhibits design excellence. These matters have been assessed by the parties and they agree that:

(a) The proposed development presents a high degree of architectural quality, tailored to the steep topography, foreshore proximity and relationship with adjoining properties; (b) Is consistent with the existing forms of development in the locality and presents a siting, scale and spatial relationship that is harmonious with the foreshore setting; (c) The proposed bulk and massing complies with the applicable principal development standards; (d) There are no resulting view impacts arising from the proposed development as per the Visual Impact Assessment prepared by Urbaine, dated 25 November 2025; (e) There are no heritage or streetscape constraints; (f) The proposed development, in terms of setbacks to adjoining developments, provides adequate relief; and (g) Incorporates a high level of architectural design, documented in the amended plans.

13. Clause 6.12 Landscaped Areas of GRLEP, provides objectives and controls to ensure the adequate provision of vegetation to minimise urban run-off, minimise the visual impact of developments and minimise heat retention in surfaces. The parties agree that the matters set out in clause 6.12(4) as the proposed development provides sufficient landscaping achieving the requirements of the clause.
14. Clause 6.12(5) requires the DA to provide a minimum landscaped area of 25% of the site area. The DA, as amended, provides 272.5m² of landscaped area, equating to 33.6% of the Site area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

9. The site is located within the Georges River Catchment pursuant to Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BCSEPP). The parties have undertaken the required assessments in respect to the proposed development including noting the following outcomes:

10. The Development Application, as amended, is supported by Stormwater Plans prepared by LMW Design Group Pty Ltd, Revision F, dated 21 November 2025. The plans confirm that the development will have a neutral or beneficial effect on the quantity and quality of water entering a waterway.

11. The proposal will reduce the amount of stormwater run-off from the Site through the provision of a rainwater tank with 3,000L capacity; and

12. The proposal utilises sediment and erosion control measures, including sediment traps, washout areas, sediment fences, gross pollutant filters and maximises screens through a pit collection system which will minimise the risk of sediment entering nearby waterways and improve the quality of stormwater run-off.

13. The parties agree that matters set out in s 6.7 regarding aquatic ecology are met. They note that the development;

14. Is not likely to have an adverse impact on terrestrial, aquatic or migratory animals or vegetation, riparian vegetation areas or wetlands, as the DA does not propose works within any wetland areas and does not seek the removal of any significant trees or riparian vegetation; and

15. minimises or avoids the erosion of land and sedimentation entering natural waterways, and protects aquatic ecology, through the provision of sediment erosion and control measures as set out above.

16. The parties agree that matters set out in s 6.8 regarding flooding are met. They note that the proposed development;

17. will not result in a release of pollutants that may adversely affect nearby waterbodies during a flood event through the sediment erosion and control measures set out above; and

18. will not have an adverse impact on the natural recession of floodwaters into wetlands as the proposed development does not propose works in or near wetland areas.

19. The parties are satisfied that the requirements of s. 6.9 are met given that the proposal will not create or reduce public access to waterbodies.

20. The parties have considered the various requirements in Section 6 of the BCSEPP which include, but are not limited to, assessing impacts on water quality, aquatic reserves, migratory animals or vegetation. The parties agree that the relevant assessments have been undertaken and that the proposed development is satisfactory. I agree that the required matters have been considered.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. The Development Application is supported by a BASIX Certificate covering matters required by s 27 of the EPA Regulation 2021 and State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP). It confirms that the proposed development satisfies relevant water and energy targets, thermal performance and quantifies the embodied emissions attributable to the development as required by s 2.1 of the Sustainable Buildings SEPP. The parties are satisfied, as am I, that the requirements of the Sustainable Buildings SEPP and s 27 of the EPA Regulation 2021 have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) details provisions regarding land use and development in coastal zones. This chapter applies to the Site as the Site is mapped as being within both the ‘Coastal Environment Area’ and the ‘Coastal Use Area’. This deems the site as falling within the ‘coastal zone’.

16. The parties have considered the matters in s 2.9(a)-(c) of the RH SEPP and agree that, through the implementation of the recommendations contained in the Geotechnical Report, the proposal will meet the requirements of s. 2.9 and is unlikely to alter coastal processes, reduce public amenity or increase risk to public safety.

17. Sections 2.10 and 2.11 set out matters that the consent authority must consider and be satisfied of, prior to granting development consent. The parties have considered these matters and agree that, by virtue of its siting, scale and nature, the consent authority can be satisfied that the proposed development is unlikely to cause an adverse impact on any safe access, views from neighbouring sites, and visual amenity and scenic qualities of, the coastal area: s 2.10(2).

18. The parties agree that the proposed development is designed, sited and will be managed to avoid an adverse impact referred to in s 2.11(a): s 2.11(2). They also agree that the proposed development, in particular the proposed landscape measures ensure that the proposed development will not result in any increased risk to significant coastal rock outcrop, including any adverse biophysical, ecological or hydrological impacts.

19. I am satisfied that the parties have undertaken the required considerations and agree that the matters raised in the RH SEPP have been appropriately considered.

20. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), consideration has been given to whether the site is contaminated. The parties agree that the site has been used for residential purposes for a number of years and is therefore unlikely to be contaminated. The proposed use of the land is to remain residential. The parties agree, and I am satisfied, that the required considerations have been undertaken.

Public Notification

21. The proposal was notified from 6 January 2025 to 20 January 2025. The Council received four (4) submissions in response to the public notification which raised concerns in relation to impacts on surrounding properties with respect to the foreshore building line, height, FSR, view loss, privacy, overshadowing, excavation and geotechnical issues and associated impacts, pool pump noise, potential damage to structures on adjacent properties, traffic management, construction fencing, inadequate 4.6 requests, privacy, and incorrect shadow diagrams.

22. The parties agree that the submissions have been taken into consideration in the assessment process.

Other Matters

23. 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’ agreement.

24. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

25. The Court notes that:

26. The Georges River Council, as the relevant consent authority, has agreed, under s 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application DA2024/0601 and supporting documents, the subject of these proceedings, in accordance with the plans and documents listed below:

| TAB | DOCUMENT | | 1. | Architectural Plans prepared by Dezcon Architects, Revision D, dated 24 November 2025: | | Drawing No. | Drawing Title | Revision No. | Date | | 000 | Cover Page | D | 24.11.2025 | | 001 | Site Specifications | D | 24.11.2025 | | 002 | Site Specifications | D | 24.11.2025 | | 003 | Site Plan | D | 24.11.2025 | | 004 | Garage and Subfloor Plans | D | 24.11.2025 | | 005 | Rumpus Floor | D | 24.11.2025 | | 006 | Lower Ground Floor | D | 24.11.2025 | | 007 | Ground Floor Plan | D | 24.11.2025 | | 008 | First Floor Plan | D | 24.11.2025 | | 009 | Roof Plan | D | 24.11.2025 | | 010 | Garage Elevations | D | 24.11.2025 | | 011 | Main Dwelling Elevations 1 | D | 24.11.2025 | | 012 | Main Dwelling Elevations 2 | D | 24.11.2025 | | 013 | Garage Section | D | 24.11.2025 | | 014 | Main Dwelling Sections | D | 24.11.2025 | | 015 | Windows & Doors Schedule | D | 24.11.2025 | | 016 | Schedule of Colours and Finishes | D | 24.11.2025 | | 017 | Renders 1 | D | 24.11.2025 | | 018 | Renders 2 | D | 24.11.2025 | | 019 | Demolition Plan | D | 24.11.2025 | | 020 | Sediment Control Plan | D | 24.11.2025 | | 021 | Deep Soil Calculation Plan | D | 24.11.2025 | | 022 | FSR Calculations | D | 24.11.2025 | | 023 | Site Analysis Plan | D | 24.11.2025 | | 024 | 9M Building Height Diagram | D | 24.11.2025 | | 025 | Shadow Diagrams at 9am on 21 June | D | 24.11.2025 | | 026 | Shadow Diagrams at 10am on 21 June | D | 24.11.2025 | | 027 | Shadow Diagrams at 11am on 21 June | D | 24.11.2025 | | 028 | Shadow Diagrams at 12pm on 21 June | D | 24.11.2025 | | 029 | Shadow Diagrams at 1pm on 21 June | D | 24.11.2025 | | 030 | Shadow Diagrams at 2pm on 21 June | D | 24.11.2025 | | 031 | Shadow Diagrams at 3pm on 21 June | D | 24.11.2025 | | 2. | Landscape plans prepared by Apex Studios, Revision C, dated 4 December 2025: | | Drawing No. Drawing Title Issue Date LA00 Title Page 00 C 04.12.2025 LA01 Concept Landscape Plan C 04.12.2025 LA02 Plant Schedule - Details C 04.12.2025 | | Drawing No. | Drawing Title | Issue | Date | | LA00 | Title Page 00 | C | 04.12.2025 | | LA01 | Concept Landscape Plan | C | 04.12.2025 | | LA02 | Plant Schedule - Details | C | 04.12.2025 | | 4. | Stormwater Plans, prepared by LMW Design Group, Revision F, dated 21 November 2025: | | Drawing No. Drawing Title Revision Date D1 Rumpus Floor Stormwater Drainage Concept Plan F 21.11.2025 D2 Lower Ground Floor Stormwater Drainage Concept Plan F 21.11.2025 D3 Ground Floor Stormwater Drainage Concept Plan F 21.11.2025 D4 First Floor Stormwater Drainage Concept Plan F 21.11.2025 D5 Roof Floor Stormwater Drainage Concept Plan F 21.11.2025 | | Drawing No. | Drawing Title | Revision | Date | | D1 | Rumpus Floor Stormwater Drainage Concept Plan | F | 21.11.2025 | | D2 | Lower Ground Floor Stormwater Drainage Concept Plan | F | 21.11.2025 | | D3 | Ground Floor Stormwater Drainage Concept Plan | F | 21.11.2025 | | D4 | First Floor Stormwater Drainage Concept Plan | F | 21.11.2025 | | D5 | Roof Floor Stormwater Drainage Concept Plan | F | 21.11.2025 | | 6. | Arboricultural Development Impact Assessment Report, prepared by Birds Tree Consultancy, dated 21 November 2025. | | 7. | Visual Impact Assessment prepared by Urbaine, dated 25 November 2025. | | 8. | BASIX Certificate Number 1766289S_02 dated 9 December 2025 and NATHERS Certificate Number FXMUH8SRWY dated 9 December 2025 |

Orders

26. The Court orders that:

27. The appeal is upheld.

28. Development Application 2024/0601 for demolition of an existing dwelling, retention of the existing garage and the construction of a new dwelling house and swimming pool, and associated works, at land identified as Lot 191 in Deposited Plan 11934, also known as 96 Marine Drive, Oatley NSW 2223 is approved subject to the conditions outlined in Annexure “A".

S Harding

Acting Commissioner of the Court

Annexure A (346 KB, pdf)

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