Beaini Developments Pty Ltd v Georges River Council

[2024] NSWLEC 1290

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beaini Developments Pty Ltd v Georges River Council [2024] NSWLEC 1290

Hearing dates:

Conciliation conference on 15 March 2024; 15 April 2024; 3 and 8 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicants are to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development application no. DA 2023/0278 for the demolition of existing structures and construction of four dwellings in the form of two semi-detached dwelling houses with associated landscaping on land described as Lots 1-4 DP 321159, known as 300 Princes Highway, Carss Park is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15(3)

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

Georges River Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.2, 6.3, 6.9, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Category:

Principal judgment

Parties:

Beaini Developments Pty Ltd (First Applicant)
Beaini Corp Pty Ltd (Second Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicants)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/305736

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against the deemed refusal by Georges River Council (Council) of development application no. DA 2023/0278 for the demolition of existing structures and construction of four dwellings in the form of two semi-detached dwelling houses with associated landscaping on land at 300 Princes Highway, Carss Park (Lots 1-4 in DP 321159).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 March 2024. I presided over the conciliation conference.

3. During that process, the Council approved, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the applicant amending the DA (amended DA) to address the contentions raised in the Council’s Statement of Facts and Contentions (SOFAC). The documents comprising the amended DA are set out at Condition 1 in Annexure A and has been filed with the Court on 15 May 2024.

4. Having resolved the contentions raised, the parties now propose resolution of the proceedings in accord with the terms outlined in their executed s34 written agreement. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the written agreement.

5. Based on the evidence and the submissions of the parties in respect to my jurisdiction, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979.

6. The preconditions of relevance are addressed in a summary form below:

Owners’ consent

7. The first and second applicants are the owners of the site in joint tenancy. Signed owner’s consent has been provided from Elias Beaini and Nahi Beaini, who are the directors of the first and second applicants respectively. The parties submit and I accept that owners’ consent has been provided in accordance with s 23 of the EPA Reg.

Georges River Local Environmental Plan 2021 (LEP)

8. The land to which the DA relates is situated within the R2 Low Density Residential Zone.

9. The proposed development is for the purposes of two semi-detached dwellings as defined in the LEP, which is permissible on the site subject to development consent under the Land Use Table.

10. The objectives of the R2 Zone are:

• 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.

11. Clause 2.3(2) of the LEP requires the consent authority to have regard to the R2 Zone objectives when determining the DA. The parties agree that the development achieves the objectives of the R2 Zone including for the reasons set out at pp 17-18 of the Statement of Environmental Effects at Tab 5 of the Class 1 Application. The DA complies with the Height of Buildings and Floor Space Ratio development standards pursuant to cll 4.3 and 4.4 respectively of the LEP.

12. The site does not comprise, or contain, a local heritage item or aboriginal object, and is not located within a heritage conservation area. The parties agree that there are no jurisdictional impediments to the granting of consent to the DA under cl 5.10 of the LEP.

13. The site is not located within the area identified as a flood planning area. The parties agree that there are no jurisdictional impediments to the granting of consent to the DA under cl 5.21 of the LEP.

14. The consent authority must consider the relevant matters relating to acid sulfate soils under cl 6.1 of the LEP as the site is identified as being affected by Class 3 soils. The parties have considered those matters and while the site is within 500m of Class 3 soils, the proposal does not result in the lowering of the watertable below 1m AHD on that land.

15. The consent authority must consider the relevant matters relating to earthworks under cl 6.2(3) of the LEP. The parties have considered those matters and conditions are proposed accordingly (see conditions 73 and 74).

16. The consent authority must be satisfied of the relevant matters relating to stormwater under cl 6.3(2) of the LEP. The parties have considered those matters, amended stormwater plans have been prepared, and conditions are proposed accordingly (see conditions 18-20, 41, 49 and 50-52).

17. The consent authority must be satisfied that essential services are available or that adequate arrangements have been made to make them available when required under cl 6.9 of the LEP. Condition 7 and 32 are imposed accordingly and the parties therefore agree that the essential services listed at cl 6.9 of the LEP are available, or that adequate arrangements have been made to make them available when required.

18. The consent authority must be satisfied of the relevant matters relating to landscaping under cl 6.12(4) of the LEP. The parties have considered those matters, the plans have been amended to retain Council’s Tristaniopsis laurina, and conditions are proposed accordingly (see 21, 24, 26, 35-36 and 54-55).

19. The parties submit and I accept that the landscaped area provided for each lot is above the 20% of the site area required by cl 6.12(5) of the LEP for a dwelling house located on land outside the Foreshore Scenic Protection Area.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

20. Section 4.6 of the RH SEPP provides that a consent authority must not grant consent to a development unless it has considered whether the land is contaminated, and if contaminated, whether it is satisfied that the land is suitable for the purpose proposed.

21. The site has a long history of use for residential purposes and there is no change of use proposed by the DA. On that basis, I accept the parties submissions that there is no reason to suspect the site is contaminated.

22. A Soil Classification Report was prepared by Geo-Teknix Solutions Group Pty Ltd and dated 21 February 2024 with respect to fill which has been placed on the site in response to contention 2.2 in the SOFAC. The report confirms that no contaminants are present and the report has been incorporated into the agreed conditions.

23. Pursuant to s 4.6(1) of the RH SEPP, the parties submit and I accept that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

24. Section 2.119 of the TI SEPP applies to the proposed development, as the site has a frontage to a classified road being the Princes Highway.

25. With respect to the requirements of s 2.119(2) the parties submit that:

1. the vehicular access to the development is provided by a road other than the classified road;

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development; and

3. the development has been appropriately located and designed, and includes measures (see condition 23), to ameliorate potential traffic noise or vehicle emissions arising from the classified road.

26. With respect to the requirements of s 2.120, the applicant has provided an acoustic report which addresses the NSW Road Noise Policy and confirms compliance with the levels listed in subs (3) of that section.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)

27. Clause 6 of the BASIX SEPP applies as the development is ‘BASIX affected development’ and a BASIX certificate must be issued for the DA.

28. An updated BASIX Certificate No.1386609M_02 has been provided by the applicant dated 15 April 2024 to satisfy the requirement in s 27 of the EPA Reg (see also condition 14 of the conditions of consent which requires compliance with the BASIX Certificate).

29. The parties submit and I accept that the DA meets the BASIX requirements in accordance with the BASIX SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

30. The BC SEPP applies to the site. The site is located within the Georges River Catchment and is subject to the provisions in Ch 6 of the BC SEPP.

31. The general and specific principles in Ch 6 are not prerequisites to the granting of consent, however, must be taken into account by the consent authority when determining the DA.

32. The parties have considered and agreed that the DA meets the aims and objectives of Ch 6 and that there are appropriate stormwater and drainage mechanisms forming part of the proposed development to mitigate any impacts on the Georges River and imposed conditions accordingly.

Public notification

33. The DA was notified from 14 September 2023 to 6 October 2023. Two (2) objections were received and the parties submit that those objections have been considered by the parties in formulating the terms of the s34 agreement.

Conclusion and orders

34. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

35. The Court orders:

1. The applicants are to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development application no. DA 2023/0278 for the demolition of existing structures and construction of four dwellings in the form of two semi-detached dwelling houses with associated landscaping on land described as Lots 1-4 DP 321159, known as 300 Princes Highway, Carss Park is determined by the grant of consent subject to the conditions set out in Annexure A.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (317086, pdf)

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Decision last updated: 03 June 2024