Mahmoud v Georges River Council

Category: Principal judgment

Parties: Karim Nabil Mahmoud (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
L Melvin (Solicitor) (Respondent)
Solicitors:
One Group Legal (Applicant)
Georges River Council (Respondent)

File Number(s): 2025/225881

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA2025/0190 for demolition of existing structures and construction of a dwelling house, swimming pool, cabana and associated works (DA) at 29 The Boulevarde, Sans Souci (Lot 1 in DP 173891) (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg 2021) to the Applicant amending DA2025/0190 in accordance with the documents listed below (amended DA):

| Description | Ref | Date | Rev | Prepared by | | Architectural Plans | | Cover Page | 000 | 23/09/2025 | F | Dezcon | | General Notes & Specifications | 001 | 23/09/2025 | F | Dezcon | | General Notes & Specifications | 002 | 23/09/2025 | F | Dezcon | | Site Plan | 003 | 23/09/2025 | F | Dezcon | | Basement Floor Plan | 004 | 23/09/2025 | F | Dezcon | | Ground Floor Plan | 005 | 23/09/2025 | F | Dezcon | | First Floor Plan | 006 | 23/09/2025 | F | Dezcon | | Roof Plan | 007 | 23/09/2025 | F | Dezcon | | Elevations 1 | 008 | 23/09/2025 | F | Dezcon | | Elevations 2 | 009 | 23/09/2025 | F | Dezcon | | Sections | 010 | 23/09/2025 | F | Dezcon | | Swimming Pool Details | 011 | 23/09/2025 | F | Dezcon | | Fence Elevations | 012 | 23/09/2025 | F | Dezcon | | Fill Plan | 013 | 23/09/2025 | F | Dezcon | | 3D Elevation Views | 014 | 23/09/2025 | F | Dezcon | | Window & Door Schedule | 015 | 23/09/2025 | F | Dezcon | | Schedule of Colour and Finishes | 016 | 23/09/2025 | F | Dezcon | | Demolition Plan | 017 | 23/09/2025 | F | Dezcon | | Sediment Control Plan | 018 | 23/09/2025 | F | Dezcon | | Landscape Calculations | 019 | 23/09/2025 | F | Dezcon | | Soft Soil Plan | 020 | 23/09/2025 | F | Dezcon | | FSR Calculations | 021 | 23/09/2025 | F | Dezcon | | Site Analysis Plan | 022 | 23/09/2025 | F | Dezcon | | Winter Shadow Diagram | 023 | 23/09/2025 | F | Dezcon | | Landscape Plans | | Title Page | LA00 | 09/09/2025 | C | Apex Studios | | Landscape Plan – Ground Floor | LA01 | 09/09/2025 | C | Apex Studios | | Landscape Plan – First Floor | LA02 | 09/09/2025 | C | Apex Studios | | Plant Schedule/Details | LA03 | 09/09/2025 | C | Apex Studios | | Stormwater Plans | | Stormwater Drainage Plan Basement Floor Level | SW10 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Drainage Plan Ground Floor Level | SW20 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Drainage Plan First Floor Level | SW30 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Drainage Plan Roof Level | SW40 | 22/09/2025 | B | AE Consulting Engineers | | Erosion & Sediment Control Details | SW50 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Sections & Details Sheet 1 | SW60 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Sections & Details Sheet 2 | SW70 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Sections & Details Sheet 3 | SW80 | 22/09/2025 | B | AE Consulting Engineers | | Stormwater Sections & Details Sheet 3 – Box Gutter Details | SW90 | 22/09/2025 | B | AE Consulting Engineers | | Driveway Plans | | Driveway Plan and Standard Detail | C01 | 09/09/2025 | B | AE Consulting Engineers | | Driveway Profile 1 | C02 | 09/09/2025 | B | AE Consulting Engineers | | Driveway Profile 2 | C03 | 09/09/2025 | B | AE Consulting Engineers | | Driveway Profile 3 | C04 | 09/09/2025 | B | AE Consulting Engineers | | Other documents | | Arboricultural Impact Assessment | AIA-MAH | 09/09/2025 | C | NSW Tree Services Pty Ltd | | Tree Protection Plan (TPP) Drawing | TPP-MAH Sheet 1 | 09/09/2025 | C | NSW Tree Services Pty Ltd | | TPP Specifications | TPP-MAH Sheet 2 | 09/09/2025 | C | NSW Tree Services Pty Ltd | | Detail Survey | - | 01/09/2025 | - | Precision Surveying Pty Ltd | | Basix Certificate | 1756699s_03 | 14/02/2025 | - | Perez Architectural Services Pty Ltd | | Waste Management Plan | - | - | - | Dezcon | | Geotechnical Investigation and ASS Assessment Report | G25021 | 24/02/25 | - | AE Consulting Engineers |

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 7 October 2025. I presided over the conciliation conference.

4. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions of consent.

Jurisdictional Prerequisites

5. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

8. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [202]). For the reasons set out below, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions as required by s 34(3) of the LEC Act.

Owner’s consent

9. I accept the parties’ agreement that owner’s consent accompanied the development application.

Community notification and objections

10. The Respondent notified the DA between 1 May 2025 and 22 May 2025. No submissions were received.

Georges River Local Environmental Plan 2021

11. The site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP). The proposed development for a dwelling house is permitted with consent and regard has been had to the objectives of the zone.

12. The parties agree and I accept that the following applicable GRLEP provisions are met:

13. Clause 2.7 permits demolition with consent.

14. Clause 4.3 sets a maximum building height of 9m. The amended architectural plans prepared by Dezcon Revision F (architectural plans) demonstrate the amended application is below 9m.

15. Clause 4.4 floor space ratio (FSR) applies to the site, being 0.55:1. The architectural plans demonstrates the amended DA is below the maximum FSR, at 0.54:1.

16. Clause 6.1 acid sulfate soils applies (ASS), however the proposed works will not lower the watertable below 1m AHD of adjacent ASS soils and a management plan is not required. A Geotechnical Investigation and ASS Assessment Report prepared by AE Consulting Engineers dated 24 February 2025 (Geotechnical Report) confirms that an acid sulfate soils management plan is not required.

17. Clause 6.2 earthworks applies to the proposed development. The amended DA is accompanied by a Geotechnical Report and Stormwater Plans prepared by AE Consulting Engineers dated 22 September 2025 (Stormwater Plans) that detail the management measures for the proposed earthworks. Appropriate conditions of consent have been imposed in relation to sediment and erosion measures, a further geotechnical report, dilapidation report, and noise / vibration reports for construction and ongoing management. On this basis and as detailed in the jurisdictional statement, I accept that the parties have adequately considered the provisions and the amended DA meets the provisions.

18. Clause 6.3 stormwater management applies to the development. On the basis of the Stormwater Plans, the amended DA demonstrates that it minimises stormwater impacts on site and on adjoining sites, maximises permeable surfaces, provides on-site stormwater detention and minimise impacts on the public drainage system. I accept that the provisions of cl 6.3 are satisfied.

19. Clause 6.9 essential services applies to the amended DA. With consideration of existing services currently provided to the site and proposed stormwater and vehicular access arrangements, I accept the parties’ agreement that the provisions have been satisfied.

20. Clause 6.12 landscaped areas applies to the amended DA. I accept the parties’ agreed submissions that the minimum 20% landscaped area has been provided and that appropriate plantings have been provided, as demonstrated by the architectural plans and the Landscaping Plans dated 9 September 2025 prepared by Apex Studios. I accept the parties’ agreement that cll 6.12(4) and (5) are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 6 applies as the site is located in the Georges River Catchment. I accept the agreement of the parties, as detailed in the jurisdictional statement and demonstrated by the stormwater plans, that the provisions of Ch 6 have been satisfied. I accept that the proposed development will have a neutral or beneficial effect on water quality, that the development will not have adverse impacts on the environment (as referred to in the SEPP) and that the proposed OSD will appropriately manage water on site.

State Environmental Planning Policy (Sustainable Buildings) 2021

14. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2021, including embodied emissions.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA does not involve a change of use and has a history of residential use. There is no evidence of prior contamination. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

16. Section 2.48 applies to the site given the proximity to overhead electricity power lines. The DA was referred to Ausgrid who did not raise any objections subject to conditions that have been included in Annexure A.

Heads of consideration

17. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

18. 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’ decision.

19. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

20. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders:

21. The Court orders:

22. The Appeal is upheld.

23. Development Application No. DA2025/0190, as amended, for demolition works and construction of a dwelling house, swimming pool and cabana at 29 The Boulevarde, Sans Souci, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

……………………….

S Porter

Commissioner of the Court\

Annexure A (379 KB, pdf)

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