Bishay v Georges River Council

[2024] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bishay v Georges River Council [2024] NSWLEC 1014

Hearing dates:

Conciliation conference 21 December 2023

Date of orders:

23 January 2024

Decision date:

23 January 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No DA2022/0402 for the demolition and construction of an attached two (2) storey dual occupancy, with Torrens title subdivision, landscaping and associated site works on land at Lot 51 DP 35818 known as No 17 Munmurra Road, Riverwood, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of an attached dual occupancy development – torrens title subdivision – conciliation conference – amended development application – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Georges River Local Environmental Plan 2021, cll 2.7, 4.1A, 4.1B, 4.3, 4.4, 4.6, 6.2, 6.3, 6.7, 6.9, 6.12

Land and Environmental Court Act 1979, ss 34, 34AA

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

State Environmental Planning Policy (Biodiversity and Conservation) 2021, 6.6, 6.7, 6.8, 6.9, 6.10, Ch 2, 6

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Reda Bishay (First Applicant)
Hany Maher Gayed Ibrahim (Second Applicant)
Shereen Ibrahim (Third Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
L Nupuri (Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
Georges River Council (Respondent)

File Number(s):

2023/226903

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) brought by the Applicant against the Respondent’s refusal of their development application (DA2022/0402). As amended the development application seeks consent for the demolition and construction of an attached two storey dual occupancy, with Torrens title subdivision, landscaping and associated site works. The development is proposed at 17 Munmurra Road, Riverwood (legally described as Lot 51 DP 35818).

2. The Applicant, by Notice of Motion sought, and was granted leave to, amend their development application as follows:

1. Increase the setback of the garage to 6.5m;

2. Reduction of the garage length to 6m;

3. Reduction in the size of the front porches proposed;

4. The floor levels of the ground and first floor reduced by 200mm (excluding the garages);

5. Increase to the side setback of unit 1 to 1.5m;

6. Amendment to the proposed roof design to be a tiled pitch;

7. Updated stormwater design plans, landscape plans and BASIX certificates.

3. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environmental Court Act 1979 (LEC Act) between the parties which was held on 21 December 2023. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of consent to an amended development application, subject to the annexed conditions.

4. As the presiding commissioner, I am satisfied that the decision is one that the Court could make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The development application is made with the consent of the owner of the land, satisfying s 23 of the Environmental Planning and Assessment Regulation 2021(EPA Regulation),

2. The development application was notified from 17 November till 1 December 2022. No submissions were received.

3. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, in determining the development application consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects confirms that the site is not identified as contaminated, or likely to be contaminated land. The parties confirm that a review of the site history indicates that it has been used for residential purposes. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

4. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the development application seeks consent for tree removal. The development application is accompanied by an Aboricultural Impact Assessment which concludes that the proposed removal is acceptable. The parties agree and I accept that the proposed tree removal and replacement planting proposed in the amended landscape plan satisfies the objectives of Chapter 2 of SEPP BC.

5. Pursuant to SEPP BC the site is located within the Georges River Catchment and therefore Chapter 6 of the instrument applies. Part 6.2 ‘Development in Regulated Catchments’ applies, with the following sections being relevant to the proposal:

1. Section 6.6: Water quality and quantity

2. Section 6.7: Aquatic ecology

3. Section 6.8: Flooding

4. Section 6.9: Recreation and public access

5. Section 6.10: Total catchment management

In relation to these sections the parties agree, and I accept, that:

1. there is no natural waterbody, watercourse, wetland or riparian vegetation located in proximity to the site;

2. the proposed development is not likely to have an adverse environmental impact.

6. The development application was referred to Ausgrid pursuant to s 2.48(2)(a) of State Environmental Planning Policy (Transport and Infrastructure) 2021. Ausgrid has confirmed the development is satisfactory subject to the imposition of relevant conditions, which are incorporated in Annexure A.

7. The development application is accompanied by the BASIX certificate in compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

8. Pursuant to Georges River Local Environmental Plan 2021 (LEP 2021) the site is zoned R2 Low Density Residential. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2021. The proposed development, dual occupancy, is permitted with consent in the zone. In determining the development application, I have had regard to the following objectives of the R2 Low Density Residential zone.

•  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.

9. Clause 4.1A ‘Minimum lot size for dual occupancies’ is a lot size provision in LEP 2021 that provides a pathway to consent for subdivision of land zoned R2 Low Density Residential where firstly consent is sought for a dual occupancy and secondly the resulting lot size will be at least 300 square metres. The development application complies with this provision with the resulting lots to have a size of 313.2 m².

10. Clause 4.1B ‘Minimum lot sizes and special provisions for certain dwellings’ subcl (2)(a) provides a minimum lot size of equal or greater that 650m² for dual occupancy development on land zoned R2 Low Density Residential. As the subject site has an area of 626.4m² the development application relies on a variation to the development standard pursuant to cl 4.6 of LEP 2021. The parties agree, and I accept, that the requirements of cl 4.6 are satisfied on the following basis:

• The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of cl 4.1B of LEP 2021, notwithstanding the non compliance with the development standard. Further, the non compliance does not create any additional adverse streetscape or amenity impacts.

• The written request establishes that there are sufficient environmental planning grounds to justify contravening the development standard. The written request demonstrates that the breach of the standard is consistent with cl 4.1A of LEP 2021 and the characteristics of the site and surrounding area. Further, the request argues that the proposed variation is consistent with the desired future character of the area and will not have any adverse impact on the public domain or neighbouring properties.

11. The development application is compliant with the provisions of cl 4.3 ‘Height of Buildings’ and cl 4.4A ‘Floor space ratio’.

12. Pursuant to cl 6.2 ‘Earthworks’ I am satisfied that the earthworks proposed in the development application are ancillary to the development. I accept the agreement of the parties that those works will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

13. Pursuant to cl 6.3 ‘Stormwater management’ the development application includes provision for the appropriate collection, retention and discharge of stormwater. I am satisfied the proposal will met the objectives of the clause and the proposed consent incorporates appropriate conditions.

14. Pursuant to cl 6.7 ‘Airspace Operations’ consent must not be granted to development where the clause applies unless consultation has occurred with the relevant Commonwealth body. In this case, no objections were received to the development from Sydney Airport Corporation.

15. The parties agree, and I accept, that cl 6.9 ‘Essential Services’ of LEP 2021 is satisfied as the nominated services are either available or adequate arrangements have been made to make them available when required.

16. Clause 6.12 ‘Landscaped areas in certain residential and conservation zones’ applies to the site as it is within the R2 Low Density Residential zone. The clause requires the consent authority to be satisfied that the development:

• Allows for the establishment of appropriate planting,

• Maintains privacy between dwellings,

• Does not adversely impact the health, condition and structure of existing trees, tree canopies and root systems on the land or adjacent land.

• Enables the establishment of indigenous vegetation and habitat for native fauna, and

• Integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.

17. Further, the clause requires the provision of landscaping to 25% of the site. The proposed development provides for landscaping to 41.3% of the site. I am satisfied that this provision and the preceding requirements are satisfied.

18. The Georges River Development Control Plan 2021 (DCP 2021) applies to the site. The statement of environmental impacts details the compliance of the proposed development with DCP 2021. In determining the development application, I have considered the provisions of the development control plans: s 4.15(1) of the EPA Act.

5. 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)).

6. In making the orders to give effect to the agreement between the parties, 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(1) of the EPA Act.

7. The Court notes that:

1. Georges River Council, as the relevant consent authority, has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA2022/0402 in accordance with the documents listed below:

Plan name	Drawing Number	Prepared by	Dated
Amended Architectural Plans
Section A-A – Issue C	DWG 673-11	RB Building & Engineering	11.2023
Shadow Diagram – 21st June – Issue C	DWG 673-12	RB Building & Engineering	11.2023
Shadow Diagram – 21st March and September – Issue C	DWG 673-13	RB Building & Engineering	11.2023
Ground Floor Plan – Issue D	DWG 673-05	RB Building & Engineering	12.2023
First Floor Plan – Issue D	DWG 673-06	RB Building & Engineering	12.2023
Amended Landscape Plans
Landscape Plan – Issue D	2595	Greenland Design	11.2023
Amended Stormwater Plans
Stormwater Concept Plan – Issue C	2549	KD Stormwater	11.2023
Supporting Documentation
Clause 4.6 Written Request		ABC Planning	12.2023

2. The written request pursuant to cl 4.6 of Georges River Local Environmental Plan 2021 seeking a variation of cl 4.1B – Minimum lot sizes and special provisions for certain dwellings prepared by ABC Planning dated December 2023 is upheld.

8. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA2022/0402 for the demolition and construction of an attached two (2) storey dual occupancy, with torrens title subdivision, landscaping and associated site works on land at Lot 51 DP 35818 known as No 17 Munmurra Road, Riverwood, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

D Dickson

Commissioner of the Court

**********

Annexure A

Decision last updated: 23 January 2024