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[2025] NSWLEC 1521
General information, not legal advice.
Land and Environment Court (NSW)
2025-07-23
Horton C
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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: Stefanovski v Georges River Council [2025] NSWLEC 1521
Hearing dates: Conciliation conference on 11 and 14 July 2025
Date of orders: 23 July 2025
Decision date: 23 July 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) The Applicant’s Written Request pursuant to clause 4.6 of the Georges River Local Environmental Plan 2021 (GRLEP) to vary the 9.0m height of building development standard pursuant to clause 4.3 of the GRLEP is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to development application no. 2024/0621 for the demolition of existing buildings and the erection of a new dwelling, swimming pool and boatshed subject to the conditions set out in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – dwelling house development in R2 Low density Residential zone – conciliation conference – agreement between parties - orders
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 4.4A, 4.6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.12
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9
Category: Principal judgment
Parties: Christopher Stefanovski (Applicant)
Georges River Council (Respondent)
Representation: Counsel:
P Vergotis (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicant)
Sparke Helmore (Respondent)
File Number(s): 2025/79063
Publication restriction: Nil
COMMISSIONER: This Class 1 appeal relates to a site on the northern foreshore of the Georges River that is proposed for development. The applicant in these proceedings lodged Development Application DA2024/0621 on 20 December 2024, seeking consent for the demolition, tree removal, construction of a four-storey dwelling house, swimming pool, inclinator, boatshed and associated works on land known as Lot 162, DP11934 at 34 Marine Drive, Oatley NSW.
As the DA was otherwise undetermined, the Applicant filed an appeal in Class 1 of the Court’s jurisdiction on 27 February 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court arranged a 2-day conciliation conference between the parties, listed for 11 and 14 July 2025 under s 34AA of the Land and Environment Court Act 1979 (LEC Act), at which I presided.
At the conciliation conference, the parties reached agreement on the matters in contention, subject to the preparation of amended plans for which a brief adjournment was granted, and a signed agreement was submitted to the Court on 14 July 2025, in accordance with s 34(10) of the LEC Act.
The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.
In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• 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.
• To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.
• To protect the ecological, scenic and recreation values of recreational waterways.
• To allow for water-based recreation and related uses.
• To provide for sustainable fishing industries and recreational fishing.
A height of building standard of 9m applies to the site, according to the relevant map at cl 4.3(2).
The proposed development exceeds this height, and the Applicant relies upon a written request to justify the contravention of the height standard in accordance with cl 4.6 of the GRLEP, contained within the Statement of Environmental Effects authored by Mr Mark Raymundo dated 23 June 2025.
The maximum height of the proposal is 10.3m, and the written request asserts that compliance with the numerical standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding the non-compliance.
The objectives of cl 4.3(1) are as follows:
a) To ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality,
b) To minimise the impact of overshadowing, visual impact, disruption of views and loss of privacy on adjoining properties and open space areas,
c) To ensure an appropriate height transition between new buildings and –
i. Adjoining land uses, or
ii. Heritage items, heritage conservation areas or Aboriginal places of heritage significance.
The reasons the objectives are achieved are summarised as follows:
In respect of objective (a), the Written Request states that while the exceedance measures 1.3m above the height standard, the upper levels to the rear present as compatible elements, and when viewed from Marine Drive, the exceedance is not perceived.
In respect of objective (b), the Written Request identifies the maximum exceedance is in the location of the rear upper bedroom and roof to the ground floor terrace. These elements are said have a negligible overshadowing impact in shadow diagrams, with 5 hours of sunlight to a side bedroom window to the adjoining dwelling at 36 Marine Drive, and when the View Loss Analysis prepared by Maximus Developments Australia is considered, no adverse view loss is expected from any existing buildings. Next the Written Request cites the location of the exceedance to the rear of the built form as a reason that privacy impacts are unlikely. Finally, the visual impact arising from the exceedance is not readily perceived from the public domain given its context and distance from Georges River.
In respect of objective (c), the minor extent of exceedance and negligible impact that ensures adjoining land uses are not affected, and the exceedance is not perceived from the street.
Next the Written Request advances five grounds it considers sufficient environmental planning grounds to justify the contravention, including:
The first ground is that the exceedance results in no inconsistency with the objects of the EPA Act.
The second ground is that similar exceedances have been a feature of approvals in the wider area between 2022 and 2024.
Strict numerical compliance would not likely result in a materially better urban design outcome given the minor extent of the exceedance and the negligible impacts in terms of solar access, privacy and view loss.
The third ground is that the extent of variation is in the public interest as there is no adverse impact to adjoining properties or beyond, and will be compatible with surrounding development in an evolving R2 zone, and because the development is not inconsistent with the objectives of the height standard.
The fourth ground is similar if not identical to the third ground, with reference to satisfying the underlying objectives of the control, and where the impacts arising from the exceedance are not unacceptable.
I note here that the Council is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the GRLEP, and that the proposed development, as amended does not impose unacceptable impacts in terms of amenity on surrounding development.
I am also satisfied that the written request has in fact demonstrated those matters required to be demonstrated by cl 4.6(3) of the GRLEP and accordingly, I find the written request should be upheld.
The proposal complies with the floor space ratio applicable to the site under cl 4.4A of the GRLEP. As the site area is more than 1000m2, but not more than 1500m2, the applicable FSR is 0.4426:1.
The site comprises land that is identified at cl 6.1 of the GRLEP as affected by Class 5 acid sulfate soils, and is located within 500m of another class of soil. An Acid Sulfate Soils Management Plan has been prepared by Australian Geoenviro dated 17 July 2025. Furthermore, the proposed without prejudice conditions of consent provide for unexpected finds of acid sulfate soil and so I consider the question of acid sulfate soils adequately addressed.
On the basis of the proposed Civil Design prepared by Greenview Consulting, the Geotechnical Report prepared by Australian Geoenviro and the Structure and Construction Methodology Report dated 13 July 2025 prepared by Greenview Consulting that sets out shoring details, I have considered earthworks for which development consent is required, and I conclude the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, based on those matters at cl 6.2(3) of the GRLEP. For completeness, this satisfaction extends to the earthworks proposed in the vicinity of the boatshed, that has been subject to Part Hydrographical and Part Topographical Detail Survey by John R Holt Surveyors Pty Ltd, and supported by the Concept Structural Engineering Detail Pier Foundations for Boatshed Construction dated 10 July 2025, prepared by CPM Engineering – Civil & Structural Consulting Engineers.
Relatedly, I am satisfied that the stormwater management proposed on the site minimises stormwater runoff volumes by on-site water detention in a 5,000L rainwater tank, and avoids significant adverse impacts of stormwater runoff to the receiving waters of the Georges River by reducing the flow of water and on the basis of MUSIC modelling, improving the water quality by the reduction of suspended solids, phosphorous, nitrogen and gross pollutants. As such, I am satisfied of those matters in respect of stormwater management at cl 6.3 of the GRLEP.
The site is identified on the Coastal Hazard and Risk Map, and the Foreshore Building Line Map at cl 6.4 of the GRLEP. The proposed development includes development forward of the Foreshore Building Line that will not extend further forward than the footprint of existing structures, and includes a boat shed and sea wall. The boatshed is proposed to be raised to account for tidal impacts of sea level rise, is located in proximity to the Georges River, appropriate for its intended purpose without causing congestion to the waterway. The development avoids environmental harm by proposing a stormwater drainage system that improves water quality and reduces water flow into the Georges River.
The site is also identified as Riparian Land and waterways on the relevant map at cl 6.5(2) of the GRLEP. For reasons similar to those at [21]-[23], I am satisfied that when those matters at cl 6.5(3) are properly considered, the proposal will not have an adverse impact on water quality and flows, stability of the bed, shore and banks of the Georges River, and will support the biophysical, hydrological and riparian ecosystems therein. Furthermore, no water extraction is proposed and agreed conditions of consent adequately address protections such as silt curtains to prevent the migration of sediment plumes and/or debris, and limits on the use of construction barges at suitable tides and the anchoring of the same.
The site is identified still further within the Scenic Foreshore Protection Area, to which provisions at cl 6.6 of the GRLEP are directed. The proposal retains elevated walkways over rock outcrops to the rear of the property, does not propose excavation for the purposes of stormwater drainage and has reduced and stepped the built form to minimise disturbance on significant vegetation and protect the natural environment, including rock formations in the rear of the lot, and minimises the impact on views and visual environment to and from the Georges River. When the landscape plans by Wyer & Co. and architectural plans prepared by Innovate Architecture are read in conjunction with the arboricultural impact assessment prepared by Jacksons Nature Works dated 20 June 2025, I am satisfied that the proposed development satisfies those matters at cl 6.6(3) of the GRLEP, including the minimisation in the height and bulk of the built form.
The site is presently served by those essential services set out at cl 6.9 of the GRLEP and I am satisfied such services will be available when required.
As the development application as amended seeks consent for the erection of a new residential building, and the land is identified on the Foreshore Scenic Protection Area Map, consent is precluded unless the proposal exhibits design excellence in accordance with cl 6.10 of the GRLEP.
I am satisfied that a high standard of architectural design, materials and detailing appropriate to the building type and location will be achieved and that the form and external appearance of the development will improve the quality and amenity of the public domain when the side setbacks and landscape treatment to the front of the site addressing Marine Drive is understood. On the basis of the View Loss Analysis prepared by Maximus Developments Australia, I consider the development results in the appropriate sharing of views.
As for the matters at subcl (5)(d) of the GRLEP, I accept the land is suitable for the development and that the proposed use is permitted with consent. No heritage constraints operate on the site, and streetscape issues are agreed to be appropriately addressed by amendments to landscape, setback and separation. Amendments to the rear of the proposal result in a bulk, massing and modulation that permits solar access to the side window openings of the adjoining dwelling and does not unreasonably overshadow land in the area. The interface with the public domain integrates landscape and results in the undergrounding of overhead powerlines.
Accordingly, I am satisfied the proposed development exhibits design excellence.
The controls at cl 6.12(5) of the GRLEP prescribes that a dwelling house located on land within the Foreshore Scenic Protection Area, such as in this case, requires 25% of the site area to consist of landscape areas or natural rock outcrops. On the basis of the landscape plans, I am satisfied that an area of 54.18% of the site area is landscaped, exceeding that required by cl 6.12 of the GRLEP.
It is also relevant that the site is located within the Georges River Catchment. As such, Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.
Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.
Given the stormwater arrangements described at [22]-[23], I am satisfied that the effect of the proposal on the quality of water entering the Georges River will be as close as possible to neutral or beneficial, and the impact on water flow in a natural waterbody is minimised.
For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.
Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.
The site is located within the coastal environment area, and the coastal use area according to ss 2.10 and 2.11 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).
I have considered whether the development is likely to cause an adverse impact of a kind set out at s 2.10(1) of the Resilience and Hazards SEPP. In doing so I am assisted by the joint position of town planning experts such that the Court can be satisfied the development is designed, sited and will be managed to avoid adverse impacts, and constrains the building footprint to retain existing bushland without significant clearing or terracing, and tree canopy is proposed to be replenished.
I have also considered the potential impacts listed at s 2.11 of the Resilience and Hazards SEPP and am likewise satisfied the development is designed, sited and will be managed to avoid those adverse impacts set out by the reduction in height and rear setback as amended, and where the landscape plans and stormwater plans satisfy the Court that the proposal will not adversely impact the visual amenity or scenic qualities of the foreshore.
For reasons that are similar to those at [23], and on the basis of the substantial setback of the proposed dwelling from the shoreline of the Georges River, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, pursuant to cl 2.12 of the Resilience SEPP, and I am also satisfied that the coastal management program applicable to the site has been considered by the experts in accordance with cl 2.13 of the Resilience SEPP.
The application is accompanied by a BASIX certificate (Cert No. 1777019S_02 dated 13 July 2025) prepared by Building & Energy Consultants Australia in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).
An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.
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 that were originally in dispute between the parties.
The Court notes that Georges River Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the Applicant amending development application no. DA 2024/0621 in accordance with the following plans and documentation (Further Amended DA):
| Drawing / Plan | Date Accepted by Council | Prepared or Drawn By | | Site Plan & Boatshed Floor Plan No. 2950 (01) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Pool Level & Lower Ground Floor Plan No. 2950 (02) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Ground & First Floor Plan No. 2950 (03) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Elevations & External Finishes Schedule Plan No. 2950 (04) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Sections, Boatshed Elevations & External Finishes Schedule Plan No. 2950 (05) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Solar Eye Diagrams Plan No. 2950 (07B) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Solar Eye Diagrams Plan No. 2950 (07C) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Solar Eye Diagrams Plan No. 2950 (07D) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Solar Eye Diagrams Plan No. 2950 (07E) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Calculations Plan No. 2950 (08) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Excavation Plan & Sections Plan No. 2950 (09) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Demolition Plan No. 2950 (10) Rev. E (14/7/25) | 14 July 2025 | Innovate Architects | | Landscape Plan – Cover Page & Contents Dwg No. DA_001 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Landscape Installation & Maintenance Specification Dwg No. DA_002 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Landscape Controls & Schedules Dwg No. DA_003 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Landscape Controls & Schedules Dwg No. DA_004 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Master Plan Dwg No. DA_100 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – First Floor Dwg No. DA_101 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Ground Floor Dwg No. DA_102 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Lower Ground Floor Dwg No. DA_103 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Wellness Floor Dwg No. DA_104 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Boatshed Dwg No. DA_105 (11.07.25) | 14 July 2025 | Wyer & Co. | | Landscape Plan – Details – Typical Dwg No. DA_300 | 14 July 2025 | Wyer & Co. | | Landscape Plan – Elevations/Sections Dwg No. DA_400 | 14 July 2025 | Wyer & Co. | | Document | Date | Prepared by | | Part Hydrographical and Part Topographical Detail Survey (34 Marine Drive, Oatley NSW – Lot 162 in Deposited Plan 11934) (11/05/2022) | 14 July 2025 | John R Holt Surveyors Pty Ltd | | View Impact Images & Montages | 14 July 2025 | Rock Hunter Australia Pty Ltd & Innovate Architects | | Acid Sulphate Management Plan Job No. AG-2017_3 (Dated 14-07-25) | 14 July 2025 | Australian GeoEnviro Pty Ltd | | Concept Structural Engineering Detail Pier Foundations for Boatshed Construction dated 10 July 2025 | 14 July 2025 | CPM Engineering – Civil & Structural Consulting Engineers | | Structure and Construction Methodology Report dated 13 July 2025 | 14 July 2025 | Greenview Consulting Pty Ltd | | BASIX Certificate No. 1777019S_02 dated 13 July 2025 – NaTHERS Certificate No. 0011608049-01 | 14 July 2025 | Building & Energy Consultants Australia |
The Court orders that:
The Applicant’s Written Request pursuant to clause 4.6 of the Georges River Local Environmental Plan 2021 (GRLEP) to vary the 9.0m height of building development standard pursuant to clause 4.3 of the GRLEP is upheld.
The appeal is upheld.
Development consent is granted to development application no. 2024/0621 for the demolition of existing buildings and the erection of a new dwelling, swimming pool and boatshed subject to the conditions set out in Annexure A.
Annexure A (465 KB, pdf)
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Annexure A has been amended and reuploaded.
Stefanovski
Georges River Council [2025] NSWLEC 1521