Murr v Georges River Council

Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Government, Apartment Design Guide, July 2015
NSW Government, Tree Canopy Guide for Low and Mid Rise Housing, February 2025

Category: Principal judgment

Parties: Michel Murr (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
C Norton (Respondent)
Solicitors:
Storey and Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2024/389877

Publication restriction: No

JUDGMENT

1. COMMISSIONER: The Applicant, Michel Murr, is the owner of two adjoining lots known as 12-14 Bembridge Street, Carlton (Lot 166 & 167 in DP 1916) and proposes to redevelop the sites as a residential flat building containing fifteen units over five storeys. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) the deemed refusal of their development applications by Georges River Council (the Respondent).

2. The development application seeks consent for:

3. Demolition of the existing single storey dwellings and site structures,

4. Construction of a four-storey residential flat building containing 15 units,

5. Excavation and construction of basement carparking,

6. Associated landscaping, civil works and communal open spaces.

7. The matter was listed for conciliation on 9 April 2025 pursuant to s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference was terminated. Subsequently the matter was listed for hearing. Prior to the commencement of the hearing the parties reached agreement on the basis of the joint reporting of the experts, amendments to the proposed development and the provision of additional information. A further conciliation conference was listed and I presided over the further conciliation conference. The decision agreed upon in the appeal is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

8. On 10 July 2025 the Applicant was granted leave for the amendment of the development application. Key amendments made to the development application were, in summary:

9. Relocated visitor parking to basement 1;

10. Provision of an overtaking bay with permeable grasscrete at the entry of the car park;

11. Relocation of the main entry to address the street;

12. Deletion of a one bedroom unit and creation of a 2-bedroom unit on level 4;

13. Relocation of communal open space to the ground floor;

14. Deletion of the fifth floor;

15. Alteration of the façade design; and

16. Amendments to landscaping, waste and stormwater design.

17. As the presiding Commissioner, I am satisfied that the decision 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

18. The site is owned by Gaelmu Pty Ltd and its owner’s consent has been provided for the subject development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

19. The development application was publicly notified to adjoining and surrounding properties between 14 March until 8 April 2025. Four submissions were received during the time of submissions. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

20. The development application was referred to Ausgrid pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) as the development is located within 5m of an exposed overhead electricity power line. Ausgrid raised no concerns with the development subject to the imposition of nominated conditions of consent. These are incorporated into the conditions at Annexure A.

21. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential purposes and no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects. The geotechnical report which forms part of the development application did not identify any foreign material during the borehole investigations. I find that s 4.6(1) of SEPP RH is satisfied.

22. The amended development application provides an updated BASIX Certificate as required pursuant to s 27 of the EPA Regulation. Section 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) requires the consent authority to be satisfied that the embodied emissions attributable to the development have been quantified. The parties agree, and I accept that, the sum of embodied emissions from all materials proposed has been entered into the online BASIX online tool and the total embodied emissions for the development have been calculated. I am satisfied that the embodied energy report forms part of the online BASIX tool of which the BASIX certificate is part.

23. Where an application relates to residential apartment development, s 29(1A) of the EPA Regulation requires that the application must be accompanied by a statement by a qualified designer, defined at s 3 of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003 (NSW). The amended development application is accompanied by a design verification statement satisfying these requirements.

24. Chapter 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the development application as it meets the matters prescribed a s 144(3), namely:

(a) the erection of a new residential flat building, (b) that building is over 3 storeys (not including carparking); and (c) the building contains at least 4 dwellings

8. Section 147 of the SEPP Housing mandates that the consent authority consider three matters. Firstly, the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9 the Housing SEPP. Secondly, the Apartment Design Guide (ADG) and thirdly, any advice received from a design review panel within 14 days of the referral of the matter to them.
9. The Applicant submitted a Design Verification Statement and Apartment Design Guide (ADG) Assessment as part of the development application. With the benefit of those documents and reviewing the plans, I have considered the design principles and the ADG and accept the agreement of the parties that those matters have been addressed by the amended development application. I note that Georges River Local Government Area does not have a design review panel.
10. Section 147 of SEPP Housing identifies non-discretionary development standards that apply to the development in relation to: the number of car spaces; the internal area of apartments; and ceiling heights. These standards all refer to the provisions of the ADG and are all met by the amended development application.
11. The site is located in a “low and mid rise housing area” as defined by s 163 of SEPP Housing. Further, the site is within zoned R4: High Density Residential development pursuant to Georges River Local Environmental Plan 2021 (LEP 2021). Accordingly, Pt 4 of Chapter 6 of SEPP Housing applies. Relevantly, s 176(2) of SEPP Housing states:

(2) Development consent must not be granted for development for the following purposes if a resulting building will have a building height of up to 17.5m unless the consent authority is satisfied that the building will have 4 storeys or fewer—

(a) residential flat buildings,

(b) buildings containing shop top housing.

12. Section 176(2) contains two development standards, first a maximum height standard (17.5m) and secondly a maximum storey standard (4 storeys). The development application seeks a variation to the maximum storey standard in that the building will be five storeys, despite complying with the 17.5m maximum height standard. The development application is accompanied by a written request to vary the standard pursuant to cl 4.6 of LEP 2021. I have read the written request prepared by Gerard Turrisi dated 10 September 2025. In accordance with cl 4.6 of LEP 2021, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the standard are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2021). The written request deduces the objectives of the standard by reference to both the objectives of Ch 6 ‘Low and mid-rise housing’ and the objectives of SEPP Housing detailed at s 3 of the instrument. Applying the reasoning of Preston CJ at [22] of Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118, the Applicant has demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2021). In particular, I find that the reasons articulated in written request in relation to the streetscape presentation as four storeys, the compliance of the development with the applicable floor space ratio and the maximum height development standard are sufficient grounds. (c) The states of satisfaction required by cl 4.6 of LEP 2021 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the maximum storey standard at s 176(2) of SEPP Housing.

13. Pursuant to s 177 of SEPP Housing ‘Landscaping—residential flat buildings or shop top housing’, development consent must not be granted to a development for the purposes of a residential flat building in the R4 High Density Residential zone unless the consent authority has considered the Tree Canopy Guide for Low and Mid Rise Housing (Tree Canopy Guide) published by the Department in February 2025. The Applicant has provided an assessment of the compliance of the development with the Tree Canopy Guide. I note that that assessment demonstrates that the landscape design which forms part of the amended development application will meet the tree canopy target of 15% of site area in the Tree Canopy Guide. In determining the development application, I have considered the provisions of the Tree Canopy Guide.
14. I note that s 180(3) of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for maximum floor space ratio (FSR) and maximum building height. Accordingly, consent cannot be refused on any of those grounds.
15. The proposed development seeks consent for the removal of 3 trees as set out in the Arboricultural Impact Assessment prepared by Rennie Bros Tree Services dated 6 December 2023. The requirements of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) are satisfied as the development application seeks development consent for the removal of any trees to which Pt 2.3 of the SEPP BC applies.
16. The Site is located within the Georges River Catchment but outside the Foreshores and Waterways Area in accordance with the maps in SEPP BC. The provisions of Ch 6 of SEPP BC include jurisdictional prerequisites to be satisfied that relate to the water catchment. In particular those contained in ss 6.6(2), 6.7(2), 6.8(2) and 6.9(2) relating to water quality and quantity; aquatic ecology; flooding; recreation and public access; and total catchment management. The parties agree, and I accept, that the Court can be satisfied these preconditions are met. In reaching this state of satisfaction I rely on the Sediment Control Plans and Water Management Plan, the amended set of stormwater plans dated 7 July 2025 and the MUSIC model and letter dated 12 August 2025 prepared by John Romanous Consulting Civil and Structural Engineers.
17. I am satisfied that satisfied that:

(a) The stormwater plans include provision for an appropriately sized onsite detention system, water treatment system and rainwater harvest system that the proposed development ensure that there will be no impact on water flow and a beneficial effect on the quality or water entering any natural waterbodies due, in part, to the existing lack of filtration or any other treatment mechanisms on the site in comparison to those proposed by the development. (b) The proposed development also keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, will not have a direct, indirect or cumulative adverse impact on aquatic reserves or wetlands and otherwise minimises the erosion of land or the creation of sedimentation impacts. (c) The site is not located within the flood planning area, considered to be flood liable or within proximity of a natural waterbody and is therefore unlikely to impact on periodic flooding that benefits wetlands and other riverine ecosystems or otherwise affect recreational land use or public access to and from foreshores or natural waterbodies. (d) Further, stormwater control and management are appropriately addressed in conditions 23-28, 30, 62, 72-75 and 128 in Annexure A.

18. The site is zoned R4 – High Density Residential pursuant to the LEP 2021. Residential flat buildings are permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone, which are:

19. To provide for the housing needs of the community within a high density residential environment.

20. To provide a variety of housing types within a high density residential environment.

21. To enable other land uses that provide facilities or services to meet the day to day needs of residents.

22. To enable other land uses that contribute to the vibrancy of the neighbourhood while ensuring that business centres remain the focus for business and retail activity.

23. To encourage development that maximises public transport patronage and promotes walking and cycling.

24. The proposal also involves demolition of the existing dwelling on the Site. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7 of LEP 2021.

25. Pursuant to cl 4.3(2) of LEP 2021, the maximum building height for the Site is 15m. However, s 180 of SEPP Housing provides a non-discretionary development standard for building height of 17.5m which is complied with and prevails: s 8 of SEPP Housing.

26. Pursuant to cl 4.4(2) of LEP 2021, the maximum FSR for the Site is 1.5:1. Section 180 of SEPP Housing provides a non-discretionary development standard for FSR of 1.5:1. The amended development application is complaint with both FSR standards.

27. The proposed development involves the carrying out of earthworks associated with the construction of footings and basement carpark. Clause 6.2 ‘Earthworks’ of LEP 2021 applies. In relation to cl 6.2(3) criteria, the development application is supported by a Geotechnical report prepared by JC Geotechnics Pty Limited and Construction and Demolition Waste Management Plan prepared by Dickens Solutions. I accept the agreed submission of the parties that:

(a) The site is not affected by floodwaters. The development incorporates a stormwater management system which ensures that stormwaters are captured, detained and conveyed via pipe to Council’s stormwater infrastructure. (b) The proposed excavation would not impede the future use or redevelopment of the site. (c) The site is not contaminated and is suitable for the proposed residential use. (d) The proposed development, and in particular the proposed excavation associated with the basement carpark would not adversely impact upon current or future amenity levels of adjoining properties. (e) The development does not involve the importation of fill. (f) The subject property is not listed as an item of environmental heritage. (g) The site is not proximate to a watercourse, drinking water catchment or environmentally sensitive area. (h) The Construction Management Plan dated 10 September 2025 prepared by Homeline Building Pty Ltd will ensure the construction impacts of the development are minimised.

23. Clause 6.3(2) of LEP 2021 contains a number of provisions to achieve the objective of minimising the impacts of urban stormwater on the Site and on adjoining properties, native bushland and receiving waters. With the assistance of amended stormwater plans prepared by John Romanous Consulting Civil and Structural Engineers, I accept the agreement of the parties that the amended development application provides for an on-site stormwater detention consistent with Georges River Stormwater Management Policy and is otherwise designed to minimise the impact on public drainage systems. I accept the proposed development also provides sufficient landscaped area as well as a permeable driveway surface waiting bay to maximise the use of water permeable surfaces on the land.
24. The site contains dwelling houses and is located in a long established urban area. It has an existing supply of water, electricity and sewerage. The Applicant submits, and I accept, that stormwater management can be undertaken on the site and that parking access by way of suitable vehicular access can be provided. Accordingly, I am satisfied that relevant essential services are available for the Proposed Development as required by cl 6.9 of LEP 2021.
25. Clause 6.10 ‘Design Excellence’ in LEP 2021 applies as the proposed development has a height of over 12m on land zoned R4 High Density Residential. Having considered the matters at cl 6.10(4) I am satisfied that the development application, as amended, exhibits design excellence as required by cl 6.10(3) of LEP 2021 on the following basis:

(a) A high standard of architectural design, materials and detailing has been achieved. The proposed building design and materials complement the existing developments in the streetscape, providing a well separated building mass, of muted tones and colours, that is supported by functional landscaped areas for communal open space. (b) the form and external appearance of the development will improve the quality and amenity of the public domain. The proposed building is well set back in the streetscape, both in horizontal and vertical dimension, with front and rear setbacks sufficiently landscaped, including along the eastern setback by a wide pedestrian entrance lobby. (c) The development will not detrimentally impact on view corridors. The proposed design of the building does not cause adverse impact on views, public domain or landmarks. (d) In relation to the matters listed at cl 6.10(5)(d) I am satisfied that:

(i) The site is suitable for the development in view of the satisfactory resolution to issues under SEPP RH, SEPP Housing and other key criteria such as stormwater management, landscaping, acoustic and parking in LEP 2021 and Georges River Development Control Plan 2021 (DCP 2021). (ii) The proposed residential use is a permissible use in the zone and compatible with existing uses. (iii) There are no heritage considerations, and the built form has been appropriately shaped to address streetscape issues, including landscape at the street level in the public domain. (iv) The proposed setbacks and building separation are compliant and, where varying, acceptable through appropriate building massing and articulation, landscaping and privacy treatments. (v) The design of the bulk, massing and modulation of the buildings is detailed design verification statement which accompanies the amended development application. With the assistance of this statement and the architectural plans I am satisfied that development application addresses the bulk, massing and modulation of buildings. (vi) The street frontage height is four storeys, despite the overall height of the building being five storeys. This setback of the upper storey results in an appropriate street frontage height. (vii) The proposed design has considered and adopted the relevant sustainable design principles, as described in the ADG. The ADG standards for solar access are met. Visual and acoustic privacy has been achieved. (viii) The access arrangements are deemed acceptable. Appropriate pedestrian access is provided to the building. Adequate car and bicycle parking has been provided. (ix) The public domain will be improved through new landscaping and paving to suit Council’s requirements. (x) The built form addresses the street frontage, and the location of the pedestrian entry provides an active street frontage. The principles of crime prevention through environmental design have been addressed in the design of the building. (xi) The updated landscape design and planting densities demonstrate excellence and integration of landscape design. Canopy trees are proposed which will assist in maintaining canopy cover. (xii) The development provides communal open spaces on the ground floor which include appropriate amenities. (xiii) The development provides appropriate waste management and recycling capacity.

26. DCP 2021 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2021. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

27. 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)).

28. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

Notes

8. The Court notes that:

9. Georges River Council as the relevant consent authority has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending the development application DA 2024/0032 the subject of these proceedings as shown in the following amended plans and reports:

(a) Architectural Plans Revision O dated 2 September 2025 by Emperio Plans 000, 106-107, 109-111, 115-116, 118, 401, 403, 405, 407-409, 501-503, 505- 506, 510-511. (b) Architectural Plans Revision P dated 10 September 2025 by Emperio Plans105, 108, 112. (c) Architectural Plans Revision C dated 8 November 2023 by Emperio Page 2 Plans 317, 321 (d) Landscape Plan L-01 Revision D dated 7 September 2025 by Ray Fuggle Associates (e) Construction Management Plan Revision 003 dated 10 September 2025 by Homeline Building Pty Ltd. (f) BASIX Certificate 1237273M_06 dated 8 September 2025 by ESD Synergy Pty Ltd. (g) BASIX Assessment Report dated 8 September 2025 by ESD Synergy Pty Ltd. (h) NatHERS Certificate 0012178240 dated 8 September 2025 by ESD Synergy Pty Ltd. (i) Design Verification Statement dated 3 September 2025 by Estefano Bonfante Norman (j) Structural Statement dated 4 September 2025 by Dr Anthony S Hasham (k) Access Compliance Statement dated 2 September 2025 by Michael Moutrie (l) S4.6 Request dated 10 September 2025 by Gerard Turrisi (m) Housing Tree Canopy Assessment dated 10 September 2025 by Maven Projects.

2. (referred to as “the amended DA”)The Applicant’s written request prepared by Gerard Turrisi dated 10 September 2025 pursuant to cl 4.6 of the LEP 2021 to vary the number of storeys development standard in s 176 of SEPP Housing is upheld.

Orders

9. The Court orders that:

10. The appeal is upheld,

11. Development application DA 2024/0032, as amended, for the demolition of existing development and construction of a five storey residential flat building comprising 15 units with a two level car park, landscaping and site works at 12-14 Bembridge Street, Carlton (Lot 166 & 167 DP 1916) is determined by the grant of consent subject to the conditions in Annexure A.

12. The Applicant shall pay the Respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the sum of $15,000 within 28 days of receiving the tax invoice from the Respondent.

D Dickson

Commissioner of the Court

Annexure A (397 KB, pdf)

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