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[2025] NSWLEC 1879
General information, not legal advice.
Land and Environment Court (NSW)
2025-12-12
Young 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: SMPO Pty Ltd v Georges River Council [2025] NSWLEC 1879
Hearing dates: Conciliation conference on 12 November 2025
Date of orders: 12 December 2025
Decision date: 12 December 2025
Jurisdiction: Class 1
Before: Young AC
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s cost thrown away as a result of amending the development application, as agreed or assessed.
(3) Development Application DA2024/0158 for demolition of existing structures and construction of a 2-storey light industry development comprising 5 units with associated parking, earthworks, landscaping, and strata subdivision and building identification signage at 67 Anderson Road, Mortdale, NSW, 2223 is determined by the grant of consent subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION — s34 conciliation conference — light industrial units — agreement reached — orders made
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Georges River Local Environmental Plan 2021, cll 2.3. 2.6, 2.7, 4.3, 4.4, 6.1, 6.3, 6.9, 6.10
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
Category: Principal judgment
Parties: SMPO Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation: Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
The Law Salon (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/385794
Publication restriction: Nil
COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application DA2024/0158 lodged with Georges River Council (Council) on 7 May 2024.
The Development Application (DA) seeks consent for the demolition of existing structures and construction of a 2-storey light industry development comprising 5 units with associated parking, earthworks, landscaping, and strata subdivision and building identification signage at 67 Anderson Rd, Mortdale NSW, legally described as Lot 36 DP 15552 (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 12 October 2025 following a hearing on 11 and 12 November 2025 that was vacated as the parties had reached agreement. I presided over the hearing and the conciliation conference.
Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Georges River Council has approved amending the DA in accordance with the amended plans.
The amendments to the DA agreed by the parties include the provision of increased setback of the proposed building resulting in an increased area of deep soil in the front setback area.
As the amended DA is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.
On 12 November 2025, the parties submitted an 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 and granting development consent to the amended DA, and subject to the conditions in Annexure A.
The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.
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.
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.
The proposed development is permissible with consent in the E4 - General Industrial zone under the Georges River Local Environmental Plan 2021 (GRLEP). To the extent they are relevant, the proposed development is consistent with the objectives in cl 2.3 of the GRLEP.
The proposed development also proposes strata subdivision and demolition which are permissible with development consent under cll 2.6 and 2.7 of the GRLEP, respectively.
The DA was publicly notified between 26 June 2024 and 18 July 2024 and 4 submissions were received. The amended DA was re-notified from 11 September 2025 to 25 September 2025.
There is a requirement for the consent authority to take into consideration these submissions under s 4.15(1)(d) of the EPA Act. I note that the parties agree, and I accept that the relevant issues raised in submissions have been adequately considered and addressed in the amended DA and through the conditions of consent in Annexure A.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.
In this case, a Detailed Site Investigation for the site has been prepared by Geoenviro dated 19 March 2025. The Detailed Site Investigation concludes that the site is suitable for the proposed development, subject to a range of recommendations which have been incorporated into the conditions of consent in Annexure A including the preparation of a Remediation Action Plan among other matters.
Accordingly, the parties agree and I am satisfied that contamination has been adequately considered and the site is suitable for the proposed use in accordance with s 4.6 of the Resilience and Hazards SEPP.
Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the proposed development, as the site is located within the Georges River Catchment which is also a regulated catchment for the purposes of Ch 6.
Based on the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, the parties agree and I am satisfied that the applicable matters under Ch 6 of the Biodiversity and Conservation SEPP have been considered and that the proposed development will not result in any detrimental impact on water catchments.
In this regard, the amended stormwater plans accompanying the DA demonstrate that the post-development stormwater flows are equal to or less than pre-development flows, and that post-development stormwater quality will be improved when compared to the current situation on the site.
Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) applies to the signage associated with the proposed development. Section 3.6 requires a consent authority to be satisfied that the signage is consistent with the objectives in s 3.1 of the Industry and Employment SEPP and that the signage satisfies a range of assessment criteria in Sch 5 of the Industry and Employment SEPP.
Based on the consideration of these matters in the Delegated Assessment Report prepared by Council dated 12 August 2025, the parties agree and I am satisfied that the requirements of the Industry and Employment SEPP have been met.
The parties agree and I am satisfied that the proposed development complies with the applicable development controls under the GRLEP and the relevant matters required to be considered for the proposed development under the GRLEP have been addressed, including:
Pursuant to cl 4.3 of the GRLEP, the maximum building height permitted is 16 metres. The proposed development has a maximum height of 15.5 metres and therefore complies with the maximum building height under the GRLEP.
Pursuant to cl 4.4 of the GRLEP, the maximum Floor Space Ratio permitted is 1:1. The proposed development has a Floor Space Ratio of 0.72:1 therefore complies with the maximum Floor Space Ratio under the GRLEP.
Pursuant to cl 6.1 of the GRLEP, the preliminary assessment of acid sulfate soils for the site prepared by Geoenviro dated 19 March 2025 found that an acid sulfate soils management plan is not required for the proposed development.
Pursuant to cl 6.3 of the GRLEP, the amended DA maximises onsite infiltration and the onsite stormwater management system includes collection and detention of rainfall and runoff from the site prior to discharge to the watercourse at the rear of the site to avoid impacts on the environment and the public drainage system. It also includes reuse of water on the site to minimise stormwater runoff and reduce reliance on mains water.
Pursuant to cl 6.9 of the GRLEP, the site is located in an existing industrial area and has an existing industrial building that is already serviced by essential services, including water, electricity, telecommunications, stormwater drainage and suitable vehicular access.
Pursuant to cl 6.10 of the GRLEP, the amended DA is accompanied by a Design Excellence Statement prepared by the Cantilever Design Collective Pty Ltd dated 25 August 2025. The Design Excellence Statement considers the relevant matters under cl 6.10 of the GRLEP and concludes that the proposed development exhibits design excellence.
Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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.
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.
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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.
The Court orders:
The appeal is upheld.
Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s cost thrown away as a result of amending the development application, as agreed or assessed.
Development Application DA2024/0158 for demolition of existing structures and construction of a 2-storey light industry development comprising 5 units with associated parking, earthworks, landscaping, and strata subdivision and building identification signage at 67 Anderson Road, Mortdale, NSW, 2223 is determined by the grant of consent subject to the conditions in Annexure A.
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Annexure A (460 KB, pdf)
Counsel representation amended.
SMPO Pty Ltd
Georges River Council [2025] NSWLEC 1879