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[2025] NSWLEC 1681
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-19
Kullen AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Madgwick v Georges River Council [2025] NSWLEC 1681
Hearing dates: 16 and 17 June 2025
Date of orders: 19 September 2025
Decision date: 19 September 2025
Jurisdiction: Class 1
Before: Kullen AC
Decision: The Court orders that:
(1) The appeal is dismissed.
(2) Development application DA2023/0138 for the construction of a new double garage with loft and an in-ground swimming pool on land at 62 Gray Street, Kogarah (legally known as Lot 1 in DP 995664) is determined by refusal of consent.
(3) All exhibits are returned.
Catchwords: DEVELOPMENT APPEAL – s34AA - orders – swimming pool and double garage with loft - impacts on tree in adjacent Council reserve – insufficient evidence on stormwater infrastructure
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, s 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Georges River Local Environmental Plan 2021, cll 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.9, 6.12
Texts Cited: Georges River Development Control Plan 2021
Category: Principal judgment
Parties: Joshua Madgwick (First Applicant)
Jessica Raneri (Second Applicant)
Georges River Council (Respondent)
Representation: Counsel:
J Madgwick (Self-Represented) (First Applicant)
J Raneri (Self-Represented) (Second Applicant)
S Lasker (Solicitor) (Respondent)
Solicitors:
Georges River Council (Respondent)
File Number(s): 2025/28812
Publication restriction: Nil
The DA was lodged with Council on 23 May 2023. The Respondent advises that the DA was publicly notified from 1 June 2023 and 16 June 2023. No submissions were received. It is noted that the Applicant had submitted a letter of support from the neighbour at 62A Gray Street with the DA.
On 13 July 2024, the DA was refused by the Council. The reasons for the refusal of the DA essentially form the basis of the contentions between the parties in this matter.
The Class 1 Application was filed with the Court by the Applicant on 23 January 2025. The Respondent filed its Statement of Facts and Contentions (the SOFAC) with the Court on 12 February 2025. The Applicant filed a Statement of Facts and Contentions in Reply (Response to SOFAC) with the Court on 18 March 2025.
The Respondent advised in the SOFAC that the proposed development in the DA (as shown on Architectural Drawings Rev B dated 15 October 2022 prepared by Charles Renari) is for:
A new trapezium shaped outbuilding containing a double width garage, located on the rear boundary with Gray Lane and side boundary to Gray Avenue, setback 20mm from the southern boundary to No. 62A Grey Street. This will replace the existing rectangular shaped twin door garage setback 1.76m off Gray Lane;
The northern triangular side of the garage proposed to contain a room with a basin and WC - this room also proposed to contain the pool equipment;
Over the footprint of the garage is a loft (stated as being for storage), accessed from a ‘new pull-down attic stair set’ with a new timber balustrade;
The low-pitched roof of the loft slopes from east to west and has two panels of translucent roof sheeting;
The northern part of the roof over part of the garage and the bathroom slopes south to east and east to west; and
The loft has two windows on the eastern elevation (to the laneway) and two windows on the western internal elevation.
The proposed Pool Plan, DAA02-A, Rev B, prepared by Blue Haven, dated 5 October 2022 (and included in the DA) shows a new swimming pool of dimensions 5m x 2.5m, located parallel to the northern boundary, between the dwelling and the proposed outbuilding. The coping is shown as setback 240mm from the northern boundary.
The DA includes new fencing and gates, and new paving leading from the existing dwelling to the proposed outbuilding.
The DA did not include removal of trees although in the SOFAC the Respondent identified that one tree within the site in the location of the swimming pool would need to be removed.
Amended DA plans were filed by the Applicant with the Court on 23 May 2025. The list of key amendments to the plans as stated by the Applicant include:
Change from flat roof to pitched roof over storage loft;
Lower height on north and south parts of massing due to pitched roof with roof pitched at 1200mm;
Lowering of head height in centre of storage loft;
Changes to fenestration to storage loft;
Deletion of floor area adjacent to and north of garage on ground floor;
Relocation of pool equipment from inside to outside;
Reduction of building footprint;
RL’s provided to various heights;
Clarification of circulation space required for car parking spaces as per AS 2890.1;
Reduction of paved surfaces;
Additional dimensions added;
Revision of quantum of Landscape Area;
Provision of Landscaping Plan;
Clarification of GFA on Loft Plan;
Revision of quantum of GFA and resultant FSR; and
Use of smaller lot size of 290.9m2 instead of surveyed lot size of 296m2.
The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) on 16 and 17 June 2025 which commenced with an onsite view under s 34(1) of the LEC Act between the parties, and at which I presided. No submitters attended the on-site view.
As the parties failed to reach agreement on the issues in contention at the conciliation conference, I terminated the conciliation conference pursuant to s 34(4) of the LEC Act and proceeded forthwith to hearing.
On the second day of the hearing, I granted leave to the Applicant to amend the DA in accordance with the further amended plans tabled as Exhibit A by the Applicant. These amended plans were dated 16 June 2025 and were prepared by the Applicant in response to the issues discussed on the first day of the hearing, and include the following plans:
Ground Floor Plan Drawing No. CRT-02 Issue D;
Garage Floor Slab Falls Issue D;
First Floor Plan Drawing CRT-03 Issue D;
Stormwater Drainage Plan Issue D;
Landscaped Area Plan CRT-09 Issue D;
Existing Landscaped Area Plan Issue D; and
Landscaping Plan – 16 June 2025 – 3 sheets.
The Court noted that the amended plans did not include amended elevations of the proposed development.
The site is located between Princes Highway and Rocky Point Road, within a pocket of R2 zoned land in the Georges River Local Environmental Plan 2021 (LEP) and is located opposite an E1 Local Centre zone to the north-west and MU1 Mixed Use to the north-east.
Existing development in Gray Street consists of single storey and double storey dwelling houses, mostly 1930s bungalows, some renovated and with second storey additions. Gray Street has a low-density residential character, the existing dwelling being somewhat shielded by the adjoining well treed Council reserve from busy Gray Avenue that connects the Princes Highway with Rocky Point Road and the high density residential flat buildings and commercially zoned land to the north.
The proposed development is to be at the rear of the site, fronting onto Gray Lane. There is a two-storey red brick residential flat building on the opposite side of the Laneway (11 Rocky Point Road). Development along the laneway comprises the rear yards of houses and units. The garages are single storey garages, some with gable style and some with flat roofs
A number of State Environmental Planning Policies apply to the proposed development. These include:
State Environmental Planning Policy (Biodiversity and Conservation) 2021;
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; and
State Environmental Planning Policy (Resilience and Hazards) 2021.
The Georges River Local Environmental Plan 2021 (the LEP) is the principal environmental planning instrument applying to the site.
The site is located within Zone R2 Low Density Residential pursuant to cl 2.2 of the LEP.
Pursuant to cl 2.3 of the LEP, permissible uses with consent include dwelling houses. The proposal is for an outbuilding and swimming pool, ancillary to an existing dwelling house and is permissible with consent.
Pursuant to cl 2.7, demolition of the existing garage will require development consent. This does not form part of the DA.
Other relevant clauses of the LEP include:
Clause 4.3 - Height of Buildings (HoB) and cl 4.4 - Floor Space Ratio (FSR) apply to the proposed development.
Clause 4.6 is about exceptions to development standards. A cl 4.6 submission was an appendix to the Statement of Environmental Effects (SEE) was submitted in support of the DA and a letter, cl 4.6 Variation Request, prepared by Charles Raneri, dated 19 March 2023 was submitted in support of a breach in the FSR.
Clause 6.1 relates to Acid sulfate soils. The site is shown as being Class 5 on the Acid Sulfate Soils map in the LEP. The Respondent advises that the proposed development does not involve excavation that will likely lower the water table on adjacent below 1m AHD on adjacent Class 1, 2, 3, and 4 land.
Clause 6.2 relates to earthworks. The Respondent advises that the proposed excavation for a garage and pool as been assessed as being acceptable on consideration of the matters in cl 6.2(3).
Clause 6.3 – Stormwater management. The objective in cl 6.3(1) is “to minimise the impacts of urban stormwater on land to which this Plan applies and on adjoining properties, native bushland and receiving waters”. The consent authority must be satisfied having regard to the matters in cl 6.3(2), prior to the grant of consent. The Respondent advises that there was no stormwater concept plan provided with the DA, so the arrangements for stormwater management of the new structure are unknown. The SEE stated that the stormwater will not be increased by the development.
Clause 6.9 – Essential services provides that the consent authority must not grant consent unless it is satisfied that adequate arrangements for essential services for the development are available when required. Paragraph (e) “stormwater drainage or on-site conservation”; and 6.9(f) “suitable vehicular access” are relevant.
Clause 6.12 – Landscaped areas in certain residential and conservation zones. This clause applies to the site as it is within the R2 zone. The objectives of the clause are stated in cl 6.12(1). The provisions apply as under cl 6.12(2) the proposal involves the erection of a new building and is located in the R2 Low Density Residential Zone. Clause 6.12(4), provides the qualitative landscaping preconditions to the grant of consent. Clause 6.12(5) requires a minimum of 20% of the site area to be landscaped area as defined under LEP 2021.
The Georges River Development Control Plan 2021 (the DCP) was amended on 28 August 2023, after the lodgement of the DA. The historic version of the DCP applies to the DA.
The Respondent advised that the most relevant parts in the historic DCP applying to the proposed development are as follows:
Part 1 Introduction
Part 3 General Planning Considerations
(a) 3.2 Biodiversity; (b) 3.3 Landscaping; (c) 3.10 Water Management; (d) 3.11 Ecologically Sustainable Development; (e) 3.13 Parking Access and Transport, including Table 1 that requires 2 spaces for a 3 bedroom plus dwelling house;
(a) 6.4.1 Fences and walls; (b) 6.4.3 Outbuildings; and (c) 6.4.4 Swimming Pools/Spas.
The contentions contained in the SOFAC were essentially maintained at the hearing by the Respondent. These are as follows:
Excessive bulk and scale of the proposed garage and loft;
Inadequate provision of landscape area and unsupported request pursuant to cl 4.6 of the LEP to vary cl 6.12(5) of the LEP (which requires at least 20% of the site area as landscaped area);
Impact of the proposed development on trees, in particular on Tree 5 (as identified in the Arborist’s Joint Report) located in the Council reserve immediately to the north of the site; and
Existing Stormwater infrastructure not established on the site.
The Court was assisted by expert evidence provided by the Applicant and the Respondent in the following disciplines:
Planning:
(a) Mr Tim Stewart for the Applicant; and (b) Ms Heather Warton for the Respondent.
(a) Mr Robert De Jong and Mr Alex De Jong for the Applicant; and (b) Mr Craig Kenworthy for the Respondent.
(a) Mr Brett Young for the Applicant; and (b) Mr Matthew McCarthy for the Respondent.
The on-site view allowed for an inspection of Tree 5 and a discussion of the root mapping undertaken by the Applicant’s arborist for this tree.
Clause 6.12(4)(c) of the LEP states that:
Development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—
…
(c) does not adversely impact the health, condition or structure of existing trees, tree canopies or tree root systems that are to be retained as part of the development on the land or adjacent land.
In the Arboricultural Joint Expert Report, Mr A. De Jong for the Applicant and Mr Kenworthy for the Respondent, had regard to three Arboricultural Impact Assessment Reports prepared by Mr R. De Jong of Arbor Express (noted as V1 dated 31 January 2024, V3 dated 6 March 2025 and V5 dated 26 May 2025) and a Root Mapping Investigation letter also by Mr R. De Jong dated 26 May 2025.
The Applicant maintained support for Mr R. De Jong’s conclusion that “it is anticipated that the proposed development will have minimal impact on the tree's root system, and therefore the health and structural stability of Tree 5 is unlikely to be compromised by the works in this location”.
The Respondent expressed the view that the Court would have “grave concerns in placing any reliance upon the Arboricultural Impact Assessment Reports and the Root-mapping letter”. The reasons for this as expressed by the Respondent were “in addition to each report being internally inconsistent regarding the location of Tree 5, neither of the three impact assessment reports, or the root-mapping letter give any reference to the large structural roots surfacing at the corner of the rear deck and adjacent to the proposed location of the swimming pool”.
The Respondent has submitted that the Court could not be satisfied that there would be no adverse impacts to Tree 5, stating that:
The presence of large structural roots of Tree 5 which are clearly evident adjacent to the proposed swimming pool has not been identified and the impacts on the Tree 5 root system have not been assessed;
What is known from the photographs of the existing tree roots which were visible at the site inspection, and from the evidence of Mr Kenworthy regarding the nature of these roots, tends to support that the development will … adversely affect Tree 5.
I agree that the extent of the root system for Tree 5 has clearly not been established for the purposes of assessing the impact on the tree of the proposed swimming pool and the stormwater drainage system (which is still undefined). I note that there are large structural roots of Tree 5 at the corner of the existing deck, immediately adjacent to the proposed swimming pool, which have not been included in the Applicant’s root mapping.
Pursuant to cl 6.12(4)(c) of the LEP, I am therefore not satisfied that the proposed development does not adversely impact the health, condition or structure of existing tree, tree canopy or tree root system (relating to Tree 5) that are to be protected on the adjacent land.
Clause 6.3(2) of the LEP sets out what a consent authority must be satisfied of in deciding to grant development consent. This includes considerations as to whether the development avoids significant adverse impacts of stormwater run-off on adjoining properties (cl 6.3(2)(c)) and whether the development is designed to minimise the impact on public drainage systems (cl 6.3(2)(d)).
The Respondent submits that the DA is not supported by a detailed stormwater concept plan that sets out the existing stormwater infrastructure and the integration of, or impact of the proposed development; and that the ‘Stormwater Drainage Plan’ unnumbered, Revision D dated 16 June 2025 and prepared by a Town Planner and Designer, Mr Charles Raneri, does not provide sufficient information to allow a consent authority to be satisfied of the matters in cl 6.3(2) of the LEP.
The existence or otherwise of stormwater infrastructure on the site was discussed at length at the on-site view. The Respondent has submitted that:
At the hearing it was surmised that there is existing drainage from the downpipe at the northwestern corner of the deck, where the swimming pool is proposed, to a point just inside the northeastern rear corner of the property, where it is further surmised, water leaves the site by unconfirmed means;
If this be the case, the proposed swimming pool will require a redirection of stormwater, as it seems reasonable to presume existing piping is installed in the area the pool is proposed. The redirection as depicted in the Stormwater Drainage Plan prepared by a Town Planner and Designer, as opposed to stormwater engineer, does not provide sufficient detail to enable a proper assessment, including as to whether there is sufficient fall for gravity drainage; and
On the ‘Ground Floor Plan, CRT-02, Issue D dated 16 June 2025’, RL’s at and near the swimming pool and down pipe of the deck are shown as 11.05; and RL’s at the northeastern juncture of the garage to Gray Lane as 11.00. This would seem to provide approximately 5cm of fall over approximately 10 metres.
The Applicant submitted that the proposed development would not create or generate any additional stormwater on the site; stating that:
The Australian Standard for stormwater is a 1:100 fall, or 1%. Over the 10m, from the downpipe at the edge of the rear deck, to the outlet the land is sufficiently flat and provides a drop in RL from RL11.06 to RL 11 - 6cm, this is a 0.6%; and
The stormwater does not exit the property at the level (RL11) as stated by the Respondent and feasibly only needs to exit the property 4cm below the RL at this point. With the slope of the rear boundary dropping from RL 11 to RL 10.75, or 25cm this is entirely feasible, and hence how the existing stormwater drainage operates.
Clause 6.9 of the LEP states that:
Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—
…
(e) stormwater drainage or on-site conservation
The issues identified with the loft and garage elements of the proposed development relate to bulk and scale of the proposed building, and the Respondent’s concern about the “excessive height” of these outbuildings.
The Respondent advises that Control 5 of Part 6.4 (Ancillary Development) of the Georges River Development Control Plan (the DCP) sets the maximum height of outbuildings at 3.5m to the ridge and 2.5m to the underside of the eaves, above existing ground level. The Respondent referred to Section A:A of Revision C of the plans filed by the Applicant on 16 June 2025, noting that the ridge of the proposed loft appeared to be 4.7m in height, and the underside of the eaves to be 3.87m in height.
The Respondent calculated that this exceedence expressed as a percentage is 34.2% at the ridge and 54.8% at the eaves. The Respondent was of the view that “there is also a significant prospect that these levels would further increase, noting the pier and beam construction method recommended by the Applicant’s arborist in order to protect a neighbouring tree.” This relates to the protection of Tree 6 located on the neighbour’s property to the south, adjoining the site of the proposed garage wall.
The Respondent accepts that the existing garage structure on the site prevents proper root-mapping to be undertaken concerning Tree 6, and that it prevents investigations to determine the viability of pier and beam construction of the proposed garage and loft. However, the Respondent considers that it remains unclear whether a pier and beam construction can be undertaken without adversely affecting Tree 6, and/or raising the floor above that which is currently proposed. The Respondent submits that any increase in floor height, without an associated decrease in loft height, would further increase the height exceedence of the garage and loft.
The objectives of the Outbuildings Control at clause 6.4.3 of the DCP include the following:
Ensure that buildings are designed and located to complement the dwelling and minimise the impact on the streetscape and the natural landscape;
Ensure that outbuildings do not adversely affect the amenity of the locality by their visual impact, size, overshadowing or use.
The Respondent considered that the prominence of the proposed location of the garage and loft with the associated exceedence in height runs counter to these objectives, stating that “the garage and loft would be visually dominating and adversely impact on the streetscape. Whilst the overall height exceeds the control by 34.2%, it is also notable that the height at the eaves exceeds the maximum height of an outbuilding, which results in a wall height that would exceed the ridge height of any complying outbuildings in the zone”.
The Applicant submitted that “the character and the streetscape of Gray Lane (located at the rear of the site) includes the visual catchment locale including the apartment building which utilises Gray Lane for vehicle access, the Ambulance Depot on Gray Avenue, and the mixed-use business on Gray Lane to the north. In this regard, the proposed garage provides a buffer barrier between the private open space of the property and the significant noise generated by road, traffic and emergency vehicles”.
I note the Council’s view that is that the features of Gray Avenue do not lead to a reading of the site as being impacted by the commercial zone located across Gray Avenue, or that a transition area is justified in varying the DCP outbuilding controls.
On balance, I consider that a case could be made for allowing an outbuilding on the site generally as proposed in the amended plans which would exceed the height provisions of Control 5 of Part 6.4 (Ancillary Development) of the DCP, given the site’s corner location, and the transition in scale and use across Gray Avenue, However, the exact height of the proposed garage and loft has not yet been established in the plans before the Court. In addition, the stormwater infrastructure required for the new garage and loft structure has not yet been confirmed as being available (as discussed in paras [38]-[43] above).
Development consent must not be granted to development on land to which this clause applies unless at least the following percentages of the site area consists of landscaped areas or natural rock outcrop - for a dwelling house located on land outside the Foreshore Scenic Protection Area - 20% of the site area.
The Respondent advises that the site area is 290.9m2 which, to comply with cl 6.12(5)(a) of the LEP, would require 58.18m2 of landscaped area. The Landscape Plan details 49.83m2 of landscape area, a 14.35% shortfall in landscaped area. By reference to the ‘Existing Landscaped Area Plan’, Issue D dated 16 June 2025, the site currently does not comply with the standard, as only 18.13% landscaped area is provided.
Pursuant to cl 4.6 (of the LEP) the Applicant has provided a written variation request, which the Respondent considers does not satisfactorily demonstrate that compliance with the standard is unreasonable or unnecessary in the circumstances of the case, nor that there are sufficient planning environmental grounds to justify the contravention.
I am concerned with the reduction of landscape area on the site, which is stated by the Respondent to be already below the 20% requirement of cl 6.12(5)(a). I note that the Applicant contends that, despite the calculations shown on the submitted landscape plan, there are areas of the site developed for uncovered stairs and decking that should be counted in the landscape area.
The Applicant’s town planning expert advises in the Joint Report of the Town Planners that the amended Landscape Plan submitted by the Applicant to the Respondent on 24 May 2025 shows the landscape area as 66.47 m2, which is 22.85% of the site area. The Applicant now contends that this complies numerically with cl 6.12(5)(a) of the LEP. The Respondent’s town planning expert disagrees with the Applicant’s calculation of landscape area.
On balance I consider that the proposed development will in all probability need to be redesigned to ensure the retention of Tree 5, possibly with the removal of the swimming pool from the proposed development. This outcome would enable a larger area of soft landscaping to be provided in the rear of the site, potentially enabling any cl 4.6 variation (if required) to be supported. I note that the proposed landscape area of the site in any redesigned development needs to be established so that it can be determined whether a cl 4.6 variation is required.
As I am unable to be satisfied pursuant to cl 6(3)(2)(c), cl 6.9(e) and cl 6.12(4)(c) of the LEP that development consent can be granted to the proposed development, I find that the amended DA should be refused.
For this reason and the other reasons stated above the appeal is dismissed.
The Court orders:
The appeal is dismissed.
Development application DA2023/0138 as amended for the construction of a new double garage with loft and an in-ground swimming pool on land at 62 Gray Street, Kogarah (legally known as Lot 1 in DP 995664) is determined by refusal of consent.
All exhibits are returned.
**********
Madgwick
Georges River Council [2025] NSWLEC 1681