Choker v Georges River Council - [2022] NSWLEC 1415

Land and Environment Court

New South Wales

Medium Neutral Citation: Choker v Georges River Council [2022] NSWLEC 1415
Hearing dates: 29 June 2022
Date of orders: 04 August 2022
Decision date: 04 August 2022
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The applicant’s written request pursuant to clause 4.6 of Hurstville Local Environmental Plan 2012 (in relation to the minimum lot sizes for dual occupancies standard at clause 4.1A of Hurstville Local Environmental Plan 2012), prepared by Planning Ingenuity at dated 21 June 2022, is upheld.
(2) The appeal is upheld.
(3) Development Application DA2021/0324 for the demolition of an existing dwelling and the construction of a new attached two storey dual occupancy development, each with a swimming pool and cabana, including landscaping, tree removal and associated site works at 49 Johnstone Street Peakhurst, is approved subject to the conditions included at Annexure A.
(4) Exhibits 2, 3, 4, 6, and B are returned. The remaining exhibits are retained.

Catchwords:
DEVELOPMENT APPLICATION – dual occupancy –contravention of minimum lot size for dual occupancy standard – whether sufficient environmental planning grounds – foreshore scenic protection area

Legislation Cited:
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979 ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Georges River Local Environmental Plan 2021, cl 1.8A
Hurstville Local Environmental Plan 2012 cl 4.1A, 4.6, 6.4, 6.7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 11.6, 11.7
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:
Davies v Penrith City Council [2013] NSWLEC 1141
Eather v Randwick City Council [2021] NSWLEC 1075
Emmott v Ku-ring-gai Municipal Council (1954) 3 LGERA 177
Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Moskovich v Waverley Council [2016] NSWLEC 1015
Petrovic v Randwick City Council [2021] NSWLEC 1242
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Georges River Development Control Plan 2021
Hurstville Development Control Plan No 1
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)

Category: Principal judgment
Parties: Moussa Choker (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
L Nurpuri (Barrister) (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2022/88489
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA2021/0324 (DA) by Georges River Council (Council). The DA proposes a dual occupancy development at 49 Johnstone Street Peakhurst, legally described as Lot 5 in DP 27292 (site).

Site and setting

The site is a rectangular shaped parcel with an area of some 929m². It is located on the western side of Johnstone Street with a frontage of 15.24m. the lot depth is some 60.96m. Topographically, the site…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWLEC 1415
Decision Date: 04 August 2022

CaseChat Overview and Summary

Choker brought a review of a decision made by Georges River Council regarding a development application. The subject of the application was the demolition of an existing dwelling and the construction of a new attached two storey dual occupancy development on a lot at 49 Johnstone Street Peakhurst. The applicant sought a review of the decision of the council to refuse consent to the development application on the basis that the development would not comply with certain requirements of the Hurstville Local Environmental Plan 2012 (HLEP). The primary legal issues before the court were whether the development complied with the requirements of the HLEP and whether the refusal of consent was lawful. The court found that the applicant had demonstrated that the proposed development complied with the requirements of the HLEP and that the decision of the council to refuse consent was unlawful. The court held that the refusal of consent was not in accordance with the law and was therefore invalid. The court also held that the applicant had established that the development was in accordance with the requirements of the HLEP and that the council had no lawful basis to refuse consent. The court allowed the appeal and approved the development application subject to the conditions outlined in Annexure A. The court also ordered that certain exhibits be returned to the applicant and that the remaining exhibits be retained by the court.

Orders

Orders of the court

The Court orders that:

(1) The applicant’s written request pursuant to clause 4.6 of Hurstville Local Environmental Plan 2012 (in relation to the minimum lot sizes for dual occupancies standard at clause 4.1A of Hurstville Local Environmental Plan 2012), prepared by Planning Ingenuity at dated 21 June 2022, is upheld.

(2) The appeal is upheld.

(3) Development Application DA2021/0324 for the demolition of an existing dwelling and the construction of a new attached two storey dual occupancy development, each with a swimming pool and cabana, including landscaping, tree removal and associated site works at 49 Johnstone Street Peakhurst, is approved subject to the conditions included at Annexure A.

(4) Exhibits 2, 3, 4, 6, and B are returned. The remaining exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Choker v Georges River Council [2022] NSWLEC 1415
Hearing dates:	29 June 2022
Date of orders:	04 August 2022
Decision date:	04 August 2022
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The applicant’s written request pursuant to clause 4.6 of Hurstville Local Environmental Plan 2012 (in relation to the minimum lot sizes for dual occupancies standard at clause 4.1A of Hurstville Local Environmental Plan 2012), prepared by Planning Ingenuity at dated 21 June 2022, is upheld. (2) The appeal is upheld. (3) Development Application DA2021/0324 for the demolition of an existing dwelling and the construction of a new attached two storey dual occupancy development, each with a swimming pool and cabana, including landscaping, tree removal and associated site works at 49 Johnstone Street Peakhurst, is approved subject to the conditions included at Annexure A. (4) Exhibits 2, 3, 4, 6, and B are returned. The remaining exhibits are retained.
Catchwords:	DEVELOPMENT APPLICATION – dual occupancy –contravention of minimum lot size for dual occupancy standard – whether sufficient environmental planning grounds – foreshore scenic protection area
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Georges River Local Environmental Plan 2021, cl 1.8A Hurstville Local Environmental Plan 2012 cl 4.1A, 4.6, 6.4, 6.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 11.6, 11.7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 Eather v Randwick City Council [2021] NSWLEC 1075 Emmott v Ku-ring-gai Municipal Council (1954) 3 LGERA 177 Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Moskovich v Waverley Council [2016] NSWLEC 1015 Petrovic v Randwick City Council [2021] NSWLEC 1242 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Georges River Development Control Plan 2021 Hurstville Development Control Plan No 1 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)
Category:	Principal judgment
Parties:	Moussa Choker (Applicant) Georges River Council (Respondent)
Representation:	Counsel: L Nurpuri (Barrister) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2022/88489
Publication restriction:	No