Christofi v Georges River Council

[2025] NSWLEC 1241

Land and Environment Court

New South Wales

Medium Neutral Citation:

Christofi v Georges River Council [2025] NSWLEC 1241

Hearing dates:

Conciliation conference on 31 March 2025 & 1 April 2025

Date of orders:

15 April 2025

Decision date:

15 April 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification Application No. MOD2024/0084 to extend the approved elevated grass area on the ground level and replace a lower planter on the ground level with further elevated grassed area in the northwest corner of the site, is approved.

(3) Development Consent No. DA2020/0145 is modified in the terms set out in Annexure A.

(4) Development Consent No. DA2020/0145 as modified is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – amendments to outdoor terrace to residential dwelling – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55

Land and Environment Court Act 1979 ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 s 113

Texts Cited:

Georges River Council, Community Engagement Strategy 2023-2033

Category:

Principal judgment

Parties:

Anastasi Christofi (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
JP Merlino (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2024/355227

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by George’s River Council, of the Applicant’s request to modify a development consent DA2020/0145. The original consent was for the demolition, pool removal and construction of a new three-storey dwelling house with swimming pool, landscaping and site works at Lot A DP 375896, known as 3 Cross Street, Kyle Bay. The modification application requests an extension of the approved elevated grassed area on the ground level, and to replace a lower planter on the ground level with a further elevated grassed area in the northwest corner of the site, pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 31 March and 1 April 2025, and over which I presided. At this conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

3. As part of this decision, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 the Council agreed to the applicant amending the modification application to reduce the extent of the proposed new grassed area, and amend the height and specification of the associated fencing and planting, thereby adequately responding to the Council’s contentions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and in a jurisdictional note. From this I note the following points.

6. Pursuant to s 4.55(1A)(a) of the EPA Act, I must be satisfied that the proposed modification is of minimal environmental impact. Relevantly, I accept that the proposed amendment is minor in scale, extending an approved area of grass. Further, the proposed boundary treatments are designed to mitigate potential amenity impacts such as privacy to the neighbouring dwelling, and visual impact on the streetscape. For these reasons, I am satisfied that the proposed modification is of minimal environmental impact.

7. I must also be satisfied, pursuant to EPA Act s 4.55(1A)(b) that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note that the modified grassed area equates to a small extension of 3.41sqm in area. This has no adverse amenity impacts, and the development remains as described, as construction of a new three-storey dwelling house with swimming pool, landscaping and site works.

8. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted.

9. The modification application was notified from 5 September to 26 September 2024 in accordance with Council’s Community Engagement Strategy. Eight submissions were received, and one objector made oral submissions at the commencement of these proceedings. The parties submit, and I accept that issues raised in these submissions have been adequately considered in the assessment of this application and in the amendments made as part of this conciliation process. I note in particular that the modification application was amended to reduce the area of grass proposed to be extended, and that the selection of screen height and material was undertaken in consultation with the neighbour directly adjoining the subject site. Previous impacts on the Thuja tree on the neighbouring site will now not occur, and the tree will be retained in its current form. The requirements of EPA Act s 4.55(1A)(c) and (d) have been met.

10. From the information contained in the joint expert reports filed with the Court, the parties’ submission, and the Statement of Environmental Effects dated 24 June 2024 by Avenue Town Planning, I accept that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(3) and that all jurisdictional prerequisites have been met. Further, the reasons given by the consent authority for the grant of the consent that is sought to be modified have been considered.

11. For these reasons, 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, and that subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The Court notes:

1. Georges River Council, as the relevant authority under s113 of the Environmental Planning and Assessment Regulation 2021, agreed to the Applicant amending Modification Application No. MOD2024/0084 in accordance with the following amended plans and documents:

1. Architectural Plans (Issue AA) prepared by David De Chiara Designs dated 1 April 2025, including:

Description	Reference No.	Date	Revision
Basement Floor Plan	2/15	1/04/2025	AA
Ground Floor Plan	3/15	1/04/2025	AA
Site Plan	6/15	1/04/2025	AA
Northern Elevation	8/15	1/04/2025	AA
Western Elevation	9/15	1/04/2025	AA
Section BB & Views	11/15	1/04/2025	AA
Deep Soil Areas	13/15	1/04/2025	AA

2. Landscape Plans (Rev J1) prepared by Monaco Designs Pty Ltd dated 1 April 2025, including:

Description	Reference No.	Date	Revision
s.4.55 Landscape Plan	Sheet 1 of 2	1/4/2025	J1
Landscape Details	Sheet 2 of 2	1/4/2025	J1

3. (collectively, the ‘Amended Modification Application’)

4. The Applicant filed the Amended Modification Application with the Court on 1 April 2025.

13. The Court orders:

1. The appeal is upheld.

2. Modification Application No. MOD2024/0084 to extend the approved elevated grass area on the ground level and replace a lower planter on the ground level with further elevated grassed area in the northwest corner of the site, is approved.

3. Development Consent No. DA2020/0145 is modified in the terms set out in Annexure A.

4. Development Consent No. DA2020/0145 as modified is Annexure B.

E Washington

Commissioner of the Court

Annexure A (256785, pdf)

Annexure B (350689, pdf)

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