Chahine v Georges River Council

[2024] NSWLEC 1504

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chahine v Georges River Council [2024] NSWLEC 1504

Hearing dates:

Conciliation Conference on 27 and 28 May, 18 and 28 June 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No. DA 2023/0268 for the demolition of existing structures and installation of an in-ground swimming pool, fire pit and related works at Lot 1 DP 549125, also known as 18 Beach Street Blakehurst, NSW, 2221, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, subs 7(1)

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

Swimming Pools Act 1992

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cll 2.2, 2.3, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, s 6.1

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

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

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Mohamad Chahine (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Ayache (Solicitor) (Applicant)
B Jackson (Barrister) (Respondent)

Solicitor:
One Group Legal (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/346558

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Georges River Council of development application DA2022/0268 (the DA). The DA sought demolition of existing structures and installation of an in-ground swimming pool, fire pit and related works at Lot 1 DP 549125, also known as 18 Beach Street Blakehurst, NSW, 2221 (the site).

2. The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 20 November 2023.

3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 and 28 May 2024. I presided over the conciliation conference, which commenced with an onsite view, attended by one submitter.

4. After the first day of the conciliation conference, the parties advised that they had reached an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. Amended architectural, stormwater and landscaping plans were prepared (the amended DA) and filed with the Court on 8 July 2024. The signed s 34 agreement and Annexure A (Conditions of Consent) were filed on 28 June 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites. The Jurisdictional Statement was filed with the Court on 8 August 2024.

7. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondent in the SOFAC.

8. In particular the amended DA addressed:

1. Changes in the level of the proposed swimming pool structure;

2. Maintaining the levels of existing retaining walls on the site; and

3. Updating landscape plans to be in accordance with the amended architectural plans, supported by an arborist’s report.

9. 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. 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.

10. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Owner’s consent

12. Owner’s consent was provided by the Applicant (who is the landowner) in the lodgement of the DA.

Community Participation (Sch 1, Div 2, subs 7(1) EPA Act)

13. The Respondent placed the DA on neighbour notification to adjoining and surrounding properties between 5 September 2023 and 28 September 2023. No submissions were received during the notification period.

14. The Respondent advised that one submission was received on 18 October 2023 after the notification period concluded on 28 September 2023. The submission raised concerns about the proposed development, namely the appearance of the retaining wall; shadowing and impacts on natural light.

Conditions

15. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Georges River Local Environmental Plan 2021

16. The Georges River Local Environmental Plan 2021 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R2 Low Density Residential pursuant to cl 2.2 of the LEP; and

1. the R2 Low Density Residential zone objectives pursuant to cl 2.3 of the LEP are:

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

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

3. 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;

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

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

17. Clause 6.1 of the LEP relates to Acid sulfate soils. The Applicant submitted in the Statement of Environmental Effects (SEE) that the site is classified as Acid Sulfate Soils Class 5. The site is not located within 500m of adjacent Class 1, 2, 3 or 4 that is below 5 metres Australian Height Datum (AHD).

18. Clause 6.2 of the LEP relates to earthworks. In deciding whether to grant development consent, the consent authority must consider the following matters pursuant to cl 6.2(3):

1. the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

2. the effect of the development on the likely future use or redevelopment of the land,

3. the quality of the fill or the soil to be excavated, or both,

4. the effect of the development on the existing and likely amenity of adjoining properties,

5. measures to minimise the need for cut and fill, particularly on sites with a slope of 15% or greater, by stepping the development to accommodate the fall in the land,

6. the source of any fill material and the destination of any excavated material,

7. the likelihood of disturbing relics,

8. the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

9. appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

19. The Respondent raised in its SOFAC that the proposed nil setback to the eastern (rear) site boundary and the associated cut and fill would result in adverse amenity impacts to the adjoining properties at 16 and 20 Beach Street. The parties advise that they are now satisfied with the lowering of the revised swimming pool structure and associated fill and setback from side boundaries of access stairs in the amended DA.

20. Clause 6.3 of the LEP relates to stormwater management. The parties advise that:

1. Conditions of consent 8(a), (b), (d) and (e) set out agreed design changes to the architectural plans which will enable the proposed development to comply with the requirements of cl 6.3 of the LEP;

2. Condition of consent 8(e) will enable the proposed development to comply with the Swimming Pool Act 1992 and relevant Australian Standards; and

3. Condition of consent 8(f) sets out agreed design changes to the stormwater plan which will enable the proposed development to comply with the requirements of cl 6.3 of the LEP.

21. Clause 6.4 of the LEP relates to Foreshore area and coastal hazards and risk. Part of site adjoins the Georges River and is mapped on the Coastal Hazard and Risk Map in the LEP; and

1. That part of the site that contains the proposed development is not within the land mapped in the Coastal Hazard and Risk Map in the LEP.

22. Clause 6.5 of the LEP relates to Riparian land and waterways. Part of site adjoins the Georges River and is mapped on the Riparian Lands and Waterways Map in the LEP; and

1. That part of the site that contains the proposed development is not within the land mapped in the Riparian Lands and Waterways Map in the LEP; and

2. The parties advise that they are satisfied with the proposed stormwater management of the proposed development (refer to [20] above).

23. Clause 6.6 of the LEP relates to Foreshore scenic protection area and focusses on retention of vegetation and protection of views to and from the Georges River. The whole of the site is mapped on the Foreshore Scenic Protection Area Map in the LEP; and

1. The proposed development consists of low-level structures which are located within the rear yard of the dwelling on the site, and are screened from the waterway by another existing dwelling located to the east of the site on the waterfront, hence not impacting on views to and from the Georges River;

2. The parties advise that existing vegetation on the site is to be retained and enhanced by new landscaping (as discussed further at [24] below).

24. Clause 6.12 of the LEP relates to landscaped areas in certain residential and conservation zones, including the R2 Low Density Residential Zone. The Respondent had raised a contention in the SOFAC about the impact of the proposed development on existing trees on the site and loss of privacy between dwellings. A landscape expert joint conferencing report (dated 28 April 2024) was filed with the Court prior to the s 34 conciliation conference addressing this contention. The plans were subsequently amended to address this contention. The parties advise that:

1. The amended plans seek to remove one tree and retain two existing trees within site which is consistent with condition of consent 34 and condition of consent 35, respectively;

2. The retention of trees, proposed landscape strip to the north of existing driveway (towards the boundary with No. 16 Beach St) and boundary hedging mitigates privacy impacts. The amended plans satisfy clause 6.12(4)(b); and

3. The updated landscape calculations demonstrate compliance with the minimum landscaping requirement of 25% as required by this cl 6.12(5)(b) of the LEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

25. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site as it is located within the catchment of the Georges River catchment. As the DA was lodged on 28 August 2023, Chapter 6 - Water Catchments of the Biodiversity SEPP applies to the site; and

1. The parties advise, and the Court is satisfied, that the amended stormwater management of the proposed development in relation to the quality and quantity of stormwater entering the Georges River at the location of the site will meet the requirements of s 6.6(1) and (2) of the Biodiversity SEPP.

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

26. The Applicant submitted BASIX Certificate No A1737821_02 with the amended plans.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. 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; and

1. The Applicant has advised that the historic use of the site is for residential purposes, with the existing residential use to continue, and the Respondent has not raised any concerns that the site is contaminated; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Georges River Development Control Plan 2021

28. The parties advise that the provisions of the Georges River Development Control Plan 2021 (the DCP) that are of relevance have been taken into account in the additional information provided with the amended DA, and all contentions raised by the Respondent relating to the DCP have been resolved, including that the proposed development’s compliance with cl 6.3 (stormwater management) also meets the requirements of the DCP.

Conclusion

29. Having considered the advice of the parties provided above at [11]-[28], I am satisfied that:

1. the Applicant’s amended DA can be approved having regard to the matters in subs 4.15(1)(b) – (e) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied;

3. approval of the proposed development is in the public interest.

30. Further, 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.

31. 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.

32. The Court notes:

1. that Georges River Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA2023/0268 made on 28 June 2024 to rely on the documents specified below:

Description	Reference	Date	Issue	Prepared by
Architectural plans
Preliminary notes and specifications	01/11	13 June 2024	A	Cedar designs
Proposed site plan	02/11	13 June 2024	A	Cedar designs
Proposed pool plan	03/11	13 June 2024	A	Cedar designs
North, south, east and west elevations	04/11	13 June 2024	A	Cedar designs
Pool sections and BASIX notes	05/11	13 June 2024	A	Cedar designs
Private open space plan	06/11	13 June 2024	A	Cedar designs
Landscape calculation plan	07/11	13 June 2024	A	Cedar designs
Site analysis plan	08/11	13 June 2024	A	Cedar designs
Finishes board	09/11	13 June 2024	A	Cedar designs
Erosion and sediment control plan	10/11	13 June 2024	A	Cedar designs
Demolition plan	11/11	13 June 2024	A	Cedar designs
Landscape plans
Landscape plan (1)	BS_018 – Drawing 10	19 June 2024	D	Studio Botanica
Landscape plan (2) – Rear	BS_018 – Drawing 10	28 June 2024	F	Studio Botanica
Stormwater plans
Stormwater drainage plan	C-3820-01	18 June 2024	4	Pavel Kozarovsi
Other documents
Waste Management Plan	24 April 2023	Cedar designs
Arboriculture Impact Assessment and Tree Impact & Protection Plan	28 May 2024	Joshua Baber
BASIX Certificate	A1737821_02	27 May 2024	Department of Planning, Industry and Environment

2. The amended DA was filed with the Court on 8 July 2024.

33. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA2023/0268 for the demolition of existing structures and installation of an in-ground swimming pool, fire pit and related works at Lot 1 DP 549125, also known as 18 Beach Street Blakehurst, NSW, 2221, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 21 August 2024