Robinson v Georges River Council

Parties: Katherine Robinson (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
C Rose (Solicitor)(Applicant)
S Wilson (Solicitor)(Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth Layers (Respondent)

File Number(s): 2025/120197

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 Robinson (applicant). The appeal was lodged based on the deemed refusal of an application being considered by Georges River Council (Respondent). The application subject of the appeal is Development Application DA2024/0159 lodged with Georges River Council on 24 May 2024.

2. The development application seeks consent for alterations and additions to an existing dwelling including a new first floor, a pool, and a cabana at 19 Salt Pan Road Peakhurst, legally identified as Lot A in DP 343807 (Site). The original Development Application also proposed a two (2) lot Torrens title subdivision; however, this component of the proposal was removed in amendments made in November 2024.

3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act). This was held on 18 August 2025. An agreement between the parties was not reached and the conciliation conference was terminated. The matter proceeded to hearing on 18 and 19 August 2025. I presided over the hearing, and this judgment reflects the outcomes of that process.

4. I have concluded, for the reasons set out below, that the merits of the matter warrant the appeal being upheld, and consequently, that the development application should be determined by way of granting of development consent.

The Site and locality

5. The Site is a rectangular shaped allotment with a primary frontage of 13.385m to Salt Pan Road. The western Site boundary adjoins Salt Pan Creek. The Site has a total area of 1,391m². The Site slopes down from Salt Pan Road to the mean high-water mark of Salt Pan Creek by approximately 15m.

6. The Site is currently occupied by a one and two storey dwelling with a detached metal shed, various animal enclosures and planted areas in the rear yard. The rear portion of the Site, adjoining Salt Pan Creek and Crown Land, comprises a heavily vegetated area.

7. There are several constraints on the Site. This includes a Sydney Water easement, for sewerage, of 4.57m width that traverses the Site approximately halfway down the property.

8. The Site is also affected by the 1% Annual Exceedance Probability (AEP) Flood of 2.5m Australian Height Datum (AHD) and by the Probable Maximum Flood (PMF) flood at the western Site boundary. Flooding is not a contention before the Court in this matter.

9. At the commencement of the appeal process an onsite view was undertaken, in the presence of the parties. This inspection included observations from experts participating in the proceedings. The experts pointed out potential impacts that might result from the proposal if constructed. The Site view included an inspection of existing buildings on the Site as well as the context of the Site, including viewing other properties within the immediate vicinity. No third parties were present.

Public Submissions

10. The development application was notified to adjoining and surrounding properties between 4 June 2024 and 27 June 2024. No submissions were received.

The Assessment Framework

Georges River Local Environmental Plan 2021

11. The Site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP) and development for the purposes of dwelling houses are permissible in the zone. The relevant objectives of the zone, to which regard must be had in determining the development application (cl 2.3, GRLEP), are:

12. To provide for the housing needs of the community within a low density residential environment.

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

14. To promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity.

15. To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.

16. 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 considered. A further subset of consideration requires having regard to how the development has addressed a variety of issues. These include, but are not limited to, the developments relationship with the public domain, the developments relationship with adjoining developments, as well as overall environmental impacts, such as overshadowing, bulk and scale.

Georges River Development Control Plan 2021

13. The Georges River Development Control Plan 2021 (GRDCP) provides guidance on the development of single dwellings.

14. The Peakhurst Locality Statement sets the built form and setting for this area around the Site. It is described as:

“…Peakhurst is a predominately low-density suburban area with a precinct of residential flat buildings to the south of Peakhurst Park and some medium density developments between Forest Road, Belmore Road and Bonds Road. The low density areas consist of a mix of detached and semi-detached houses built in the inter-war and post-war periods, as well as contemporary knock down rebuilds. This has resulted in an eclectic mix of housing styles.

Due to the gradual trickle of housing development in Peakhurst up until the mid-1940s, there is a lack of uniform subdivision pattern throughout the locality. While some streets feature a grid-like pattern with varying levels of formality, others have been formed from sweeping cul-de-sacs layouts…” (GRDCP, Part 5, Section 5.4, p 14)

15. The future desired character statement for the locality makes no reference to bulk, scale or form (GRDCP, Part 5, Section 5.4).

16. The GRDCP deals with single dwellings in Part 6, Section 6.1.2. The contentions in this appeal arise from the controls outlined in Subsection 2 — Building Scale and Height. In particular, Control 3 states:

“A maximum of two (2) storeys plus basement is permissible at any point above ground level (existing). Basements are to protrude no more than 1m above existing ground level.”

17. Variations to the two-storey limit are entertained by other sections in the GRDCP. As an example, Subsection 10, Control 6 — Solar Access, requires consideration of overshadowing impacts where a variation to the number of storeys is sought.

The Issues

18. The primary issues in this appeal centre around the disagreement as to whether a three-storey development is acceptable. The issues are expressed as concerns over bulk and scale as well as potential overshadowing impacts. The bulk and scale concerns are raised in Contention 1, which deals with Design Excellence, Contention 4 which deals with Bulk and Scale, and Contention 5 which deals with Overshadowing (Respondent’s Statement of Facts and Contentions).

19. The respondent acknowledges that there are several contentions that are now resolved. This is despite the Site being mapped as affected by flooding, mapped as a threatened ecological community, mapped as riparian land, and forming part of the Foreshore Scenic Protection Area.

20. The experts providing evidence to the Court practice in the field of Town Planning. William Fleming (engaged by the applicant) and Kim Johnston (engaged by the respondent), both planning experts, participated in the preparation of a joint expert report addressing the contentions (Ex 2).

21. The position of the applicant is that the third storey is acceptable as it is not inconsistent with the character of the area and there are minimal impacts. Mr Fleming states:

“…that the number of storeys control is not determinative with regard to bulk and scale, and that it is irrelevant when developing a potential building envelope Two (2) storey dwellings can range in scale when applying the 9m height of buildings control and reflects a desired form rather than intended to control a buildings bulk and scale.” (par 2.1.5, Ex 2)

22. The respondent maintains that enforcement of the two-storey control is critical and that the third story is visually unacceptable and has bulk and scale impacts on the neighbours, particularly to the south. Ms Johnston states:

“The number of storeys of the Proposal, exceeding the maximum number of storeys by one (1) storey, adversely impacts on the bulk and scale of the Proposal by locating a greater massing of the building into one component of the building envelope. This results in an imposing wall to the boundary, and generally ignores the slope of the land. A two storey structure would more effectively distribute the bulk of the building envelope along the Site and would reduce the imposing nature of the three storey wall to the adjoining properties.” (par 2.1.10 Ex 2)

Is the bulk and scale acceptable?

23. It is an agreed position that the building complies with the statutory height provision set in cl 4.3 of the GRLEP. It is also an agreed position that the development is well below the maximum floor space ratio for the Site set by cl 4.4 of the GRLEP.

24. The GRDCP sets out, in Appendix 6 — Building Heights and Indicative Storeys, some indicative height outcomes for development types. Residential development in the R2 Low Density Zone, with a height of 9.0m, has an indicative floor to floor height of 3.1m plus an allowance for basements. The allowance for basements is as set out in Part 6, Section 6.1.2, Control 3 (discussed above at [16]). The basement is measured to the underside of the ground floor slab (basement ceiling).

25. Ms Johnston gave oral evidence that there was no ceiling height control, no wall height control, nor a roof form control, applying to the development. Ms Johnston also acknowledged that some buildings may appear three-storeys but that they were not defined as such according to the definition of a storey.

26. The applicant highlighted some indicative overall measurements for dwellings using Appendix 6. The applicant added together these elements to get a range of possible dwelling heights. These were put to Ms Johnston in oral evidence, that is, the total allowance could be as much as 1.0m for basement, two floors for the habitable space (each with floor-to-floor heights of 3.1m, total= 6.2m), plus attic/roof space. The result is a dwelling, contemplated by the GRDCP, that is possibly over 8.0m and up to 9.0m in height, depending on the roof form.

27. The consequence of the heights in Appendix 6, as outlined by the applicant, is that a two-storey dwelling can easily achieve close to the same height as the current proposal. This means the built form of a two-storey building can appear to have the same bulk and scale as a building which contains three-storeys, whilst staying within the same height envelope. This is both in terms of wall height and overall height. The only discerning difference is the appearance of the facade.

28. I prefer the evidence of the applicant, that the overall height, bulk and scale of the development is not fundamentally informed by the number of storeys it contains. I accept the position that the GRDCP contemplates a building envelope that is not inconsistent with the proposal even though the proposal contains an extra storey.

29. Conversion of the lower level to a basement, would result in a scheme that meets the two-storey control, height and FSR yet occupies a similar building mass. Deletion of the lower level, and conversion to a basement, would not inherently change the massing of the building. Whilst this is not the application before the Court, it warrants contemplation. It invites the question as to what role the two-storey control plays if a building of both three storeys and two storeys can be achieved in the same statutory height limit.

30. This brings to the fore the applicant’s argument, in this instance, that the two-storey control is superfluous to the development outcomes. The control is trying to prohibit what is inherently permitted by the height standard in cl 4.3 of the GRLEP.

31. It is evident from the Site inspection, and from development examples in the Town Planning Joint Expert Report (Ex 2), that there are buildings within the immediate vicinity that appear as three storeys. If the two-storey control is one that seeks to define character, then it is unhelpful that the controls allow buildings that may appear three storeys but are technically two, as outlined by Ms Johnston. I also note the absence of a statement about bulk and scale in the desired future character statement for the precinct.

32. These outcomes undermine any role that the two-storey control has in setting a strong two-storey character for the area, that is, it undermines a perception that the control is to limit the overall height and form of buildings. When coupled with the examples provided by the applicant, such as 23A Salt Pan Road, it is easy to reach the conclusion that the eclectic form of development found within the locality (see Peakhurst Locality Statement at Part 5, Section 5.4 of the GRDCP, page 14), does not warrant strict adherence to the two-storey control.

33. It is nevertheless appropriate to consider the bulk and massing of the development and the relationship with adjoining development. This is foreshadowed by the GRDCP in Subsection 10 — Solar Access. The planners discuss two potential impacts, the first being overshadowing.

Is the extent of overshadowing acceptable?

34. The proposal will overshadow the townhouse development on the allotment to the south. It is agreed that this is a largely unavoidable outcome given the proximity of the townhouse development to the boundary and the orientation of the sites. The question remains as to whether there is acceptable solar access to the private open space and living rooms of the townhouses. A layout of the townhouse, including open space, is provided in Ex 7.

35. Detailed shadow plans were also provided and assessed through the joint report process. These were further interrogated by the experts onsite and in oral evidence.

36. The area of dispute between the experts focuses on a small area between the kitchen and bedroom of Townhouse 2. Ms Johnston raises concern that the third storey has an unacceptable impact on solar access to Townhouse 2. There remained a dispute between the experts as to the extent that the third storey would cast shadow over the area of concern.

37. It is evident from the plans in Ex 7 that this area is a supplementary outdoor area constrained by a landing and steps. As an ancillary space, it is not specifically covered by the GRDCP as the controls seek to preserve primary open space from overshadowing.

38. There are separate stairs to the primary open space. It is agreed that the main private open space is not overshadowed by the proposed development after 11:30am (approx.). The shadow diagrams demonstrate that this area would receive the requisite 3 hours of sunlight.

39. I accept the evidence of the applicant that the upper level of the proposed building has little role, if any, on overshadowing the property to the south, particularly in relation to Townhouse 2. As a result, the corner of the building that creates the most shadow, is at a lower level of 6.7m, as outlined by Mr Fleming in Ex 2, par 2.3.11. The evidence of Mr Fleming, accompanied by outcomes at the onsite view and the shadow diagrams, indicate that the solar access impacts are acceptable.

Is the scale of the proposed development visually acceptable?

40. The experts did not agree as to whether the proposed dwelling has an acceptable visual presence. Ms Johnston was concerned about the possibility of the upper level being seen from the rear door of the Townhouse 2 (adjoining). This was in addition to concerns that the upper level would be visible from properties such as 21 and 23 Salt Pan Road.

41. There was little evidence provided by the Ms Johnston as to the consequences of being able to “see” the upper most storey. The concern raised was simply that it can be “seen” and therefore it has an unsatisfactory bulk and scale (compared to a two-storey dwelling).

42. I have already agreed with Mr Fleming that the overall height of the building is not driven by the storey limit, that is, a two or a three-storey dwelling can achieve the same height. As a result, there is little relationship between the building being three or two storeys, when considering the visibility of the building from nearby properties. It is the resultant height of the proposal at the upper level that is of greater importance, and it is agreed that this is acceptable in terms of the statutory height control.

43. I also note the comments of Mr Fleming about the recessed nature of the upper level. Mr Fleming notes that the staggered façade contributes to reducing the apparent height of the building and compliance with setbacks aids this outcome. I agree with the applicant that any visual impact of the proposal is not such that would warrant refusal of the application.

Other Jurisdictional Matters

44. In reaching a decision on this matter, I have had regard to the required jurisdictional matters as outlined below.

45. The Biodiversity Conservation Act 2016 (NSW) is triggered by the presence of the Swamp Oak Floodplain affecting the Site. Material was prepared by Growing my Way Tree Consultants (arborists), to assist in the assessment of the vegetation and landscaping elements of the proposal. The parties agree that the required assessment has been undertaken and that the proposed development is assessed as no impact.

46. The applicant has provided the required information to address State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). Chapter 6 of the SEPP BC applies as the Site is within the Georges River Catchment. The parties agree that the proposed stormwater solution provides the required stormwater outcomes. I agree and accept that the proposal is satisfactory in this regard.

47. The applicant has provided, and Council accepts, information relating to BASIX as required by State Environmental Planning Policy (Sustainable Buildings) 2022. I agree that the material is satisfactory.

48. GRLEP, cl 5.21 — Flood planning, applies to the land. The applicant obtained relevant flood information from Council prior to lodging the development application (Ex 5). The applicant provided a Flood Inundation Investigation report by Barrenjoey Consulting Engineers filed 28 March 2025. The parties agree, as do I, that the proposal is satisfactory in respect to flooding.

49. GRLEP, cl 6.5 — Riparian Land and waterways, applies to the Site. The parties agree that the proposed development does not impact the area mapped as riparian land. I agree that the proposal is acceptable in respect to the riparian land.

50. GRLEP 2021, cl 6.10 — Design Excellence, applies to the Site. The parties do not agree as to whether design excellence has been achieved. In considering the requirements of cl 6.10 of the GRLEP, I have had regard to the matters in cl 6.10(5) which require contemplation of a number of factors prior to the grant of a development consent. This judgment outlines the reason why I have determined that the requirements for design excellence have been met. The consideration includes the relationship of the proposal with surrounding development, the bulk, massing and modulation of the development and the context of the development in terms of the locality.

Conditions of Development Consent

51. The parties are not in agreeance with proposed conditions of development consent that relate to the documentation and implementation of landscaping. The application does not propose extensive landscaping as it seeks to retain existing plants and timbered areas. Drawing DA16 sets out the deep soil calculations and includes annotations that no new landscaping is proposed.

52. The respondent has not raised as an issue that more, or better, landscaping is required for the Site. It is agreed that the proposed development will not impact on the existing vegetation, largely due to the large Site area and the distance of the proposed works from sensitive areas.

53. There are proposed conditions that require a tree management plan for existing trees on the Site, and this is largely agreed to by the applicant. Additional planting to replace trees removed (two Frangipani trees) is also agreed.

54. I agree with the applicant that the conditions requiring high levels of preparation and expertise for landscape works capture several tasks that appear unnecessary for alterations and additions to an existing dwelling. The Site is large enough that much of the existing landscaping is annotated to remain. I am satisfied that the proposed conditions that require tree protection and management, and maintenance for new trees, are satisfactory.

Conclusions

55. After a considered evaluation of the evidence, and an assessment of the matters for consideration in s 4.15(b) of the EPA Act, I have concluded that the proposal is acceptable.

56. Whilst I have been provided with relevant readings for guiding a decision in this matter, it is evident that the GRDCP provides the required opportunity for flexibility. The eclectic nature of development described in the locality character statement, and the contemplation of variations to the storey control, are but two examples that open the door for this assessment process.

57. The main contention pressed by the respondent is that the proposal exceeds the two-storey control in the GRDCP, and therefore, is excessive in terms of bulk and scale. In contrast, the two-storey control does little to limit the bulk and scale of future development, including the subject proposal. The controls, such as height and FSR, that do seek to limit bulk and scale, are complied with.

58. When the scheme is measured against other objectives to the controls, such as amenity and overshadowing, the evidence indicates that the impacts are minor and that they are acceptable. The reduced scale of the upper level ensures that the building has reduced impacts than might otherwise be the case.

Orders

59. The Court orders that:

60. The appeal is upheld.

61. Development Application DA2024/0159 for alterations and additions to an existing dwelling including a new first floor, pool, and cabana at 19 Salt Pan Road, Peakhurst, legally known as Lot A in DP 343807, is determined by the grant of development consent, subject to the conditions in Annexure A.

62. The exhibits are to be returned with the exception of Exhibits 1, A, B and F.

S Harding AC

Acting Commissioner of the Court

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Annexure A (133 KB, pdf)