Construction By Design (NSW) Pty Ltd v Georges River Council

[2024] NSWLEC 1658

Land and Environment Court

New South Wales

Medium Neutral Citation:

Construction By Design (NSW) Pty Ltd v Georges River Council [2024] NSWLEC 1658

Hearing dates:

Conciliation conference on 3 October 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Development Application No. DA2023/0612, as amended, for the demolition of existing dwelling and ancillary structures and construction of a two-storey dwelling house, swimming pool and associated civil and landscape works on Lot A in DP310289, known as 36 Beach Street, Blakehurst, NSW, 2221, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – residential dwelling – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Sydney Water Act 1994, s 78

Environmental Planning and Assessment Regulation 2021, s 38,

Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 4.4A, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.12,

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy 2021, s 2.48

Category:

Principal judgment

Parties:

Construction By Design (NSW) Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J King (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/142088

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Georges River Council, of Development Application DA2023/0612 which seeks consent for the demolition of existing structures and construction of a two-storey dwelling house at 36 Beach Street, Blakehurst, Lot A DP 310289.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 October 2024, over which I presided.

4. At the 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 granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application to adequately respond to the Council’s contentions.

6. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified in a detailed jurisdictional note. From this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified from 26 March to 18 April 2024, and the amended application was re-notified from 18 April to 10 May 2024. One submission was received in this time, and no oral submissions were made at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in the one submission.

9. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to GRLEP cl 4.3, a maximum building height of 9m applies to the subject site. The proposed development complies with this development standard with a maximum height of 8.788m.

11. GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.55:1, however pursuant to cl 4.4A(2), the site is mapped ‘Area 1’ on the Floor Space Ratio map, which results in a reduced maximum FSR of 0.47:1 The proposed development again complies with this development standard with a maximum FSR of 0.469:1.

12. GRLEP cl 5.7 requires that no development be carried out below the mean high water mark of any body of water subject to tidal influence. The survey provided as part of the amended application demonstrates that, as amended, no work is proposed below the mean high water mark.

13. Pursuant to GRLEP cl 6.1 Acid Sulfate Soils, the front portion of the site facing Beach Street is identified as Class 5, and the rear portion of the site fronting Kogarah Bay as Class 3 on the Acid Sulfate Soils Map. Based on the parties’ submission, and the Geotechnical and Acid Sulfate Soil Investigation Report dated 7 May 2024 by Geo-Environmental Engineering (the Geotechnical Report) I accept that based on soil sampling and testing that the site is not considered to contain actual or potential acid sulfate soils, and further that the volume of soil expected to be disturbed by the development is anticipated to be less than 1000 tonnes. On that basis, an Acid Sulfate Soils Management Plan is not required and the provisions of cl 6.1 are met.

14. Pursuant to GRLEP cl 6.2, the parties submit, and I accept that the matters pertaining to earthworks have been adequately considered, as supported by:

• Revised architectural plans by Construction by Design issued 21 August 2024 (the Architectural Plans)

• The revised landscape plans by Fluid Design issued 13 September 2024 (the Landscape Plans)

• The revised stormwater plans by Engineering Studio issued 18 September 2024 (the Stormwater Plans)

• The Geotechnical Report

• The Statement of Environmental Effects by BMA Urban dated December 2023 (the SEE)

15. The amended application is supported by revised Stormwater Plans. From these plans and the parties’ submission, I accept that the stormwater management of the development meets the requirements of GRLEP cl 6.3.

16. GRLEP cl 6.4, Foreshore area and coastal hazards and risk, applies to the site as it adjoins the foreshore of Kogarah Bay. The proposed building has a minor encroachment into the foreshore building line at the first floor roof. From the parties’ submission and the revised architectural drawings, I accept that this encroachment is both negligible and within the existing building footprint, and is therefore acceptable pursuant to this clause.

17. The rear portion of the site facing the Kogarah Bay foreshore is mapped as ‘sensitive land’ pursuant to GRLEP cl 6.5 Riparian land and waterways. From the parties’ submission and the revised architectural, landscape and engineering plans, and the Geotechnical Report in the amended application, I accept that the matters listed in cl 6.5(3) have been considered. I further accept that the development is designed, sited, and will be managed to avoid significant adverse environmental impact, or if it cannot be reasonably avoided as required by cl 6.5(4).

18. Pursuant to the requirements of GRLEP cl 6.6, parts of this site have been identified as ‘Foreshore scenic protection area’. From the parties’ submissions, the amended architectural, landscape, engineering and survey plans, the SEE, and the Visual Impact Assessment by Urbaine Design Group dated 17 September 2024, I accept that the development facilitates the requirements listed in cl 6.6(3).

19. Based on the parties’ submissions, the stormwater plans and the fact that the existing residential dwelling is fully serviced, I accept that all essential services are available, or that adequate arrangements have been made to make them available as required by GRLEP cl 6.9.

20. Pursuant to GRLEP cl 6.10, the consent authority must consider that the development exhibits design excellence through having regard to the matters listed in cl 6.10(5). From the parties’ submission and the information contained in the amended application, I accept that when considered against the cl 6.10(5), the proposed development exhibits design excellence for the purposes of GRLEP cl 6.10.

21. Pursuant to GRLEP cl 6.12 (landscaped areas in certain residential and conservation zones), based on the parties’ submission, the amended landscape plans, and the relevant conditions of consent, I accept that the landscaped area exceeds the minimum 25% landscaped area requirement, and that the development satisfies the requirements listed in cl 6.12(4).

22. As the site is identified as being within a Coastal Environment Area and Coastal Use Area pursuant to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), Ch 2 of this SEPP applies. From the parties’ submission and the information contained in the amended application, I accept that the proposed development satisfies the requirements of ss 2.10, 2.11 and 2.12 of the SEPP R&H. Further, the parties submit and I accept that no coastal management plan currently applies to the site, and therefore that s 2.13 is also satisfied.

23. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. From the parties’ submission and the Geotechnical Report, I accept that there is no known contamination on the site, nor any history of contaminating activities and that the site is suitable for the continued residential use.

24. Pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022, the proposal is a BASIX affected development. Accordingly, the application was accompanied by a BASIX certificate which the parties submit, and I accept, is satisfactory.

25. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the site. From the parties’ submission, the amended landscape and stormwater plans, and the supporting letter by Engineering Studio dated 2 October 2024, I accept that the matters listed in s 6.6(1), 6.7(1) and 6.8(1) have been considered and that the proposed development satisfies the requirements pertaining to water quality and quantity, aquatic ecology and flooding as set out in ss 6.6, 6.7 and 6.8 of the SEPP B&C.

26. I further accept that the proposed development does not contain, provide, or impact any public access to and around foreshores or to natural waterbodies, and that SEPP B&C s 6.9 does not apply.

27. From the parties’ submission I also accept that the proposed development is not likely to have any adverse environmental impact on any downstream local government area and that subsequently, consultation is not required with any other local government area and the requirements of s 6.10 of the SEPP B&C are satisfied.

28. Ausgrid were given written notice of the development as required under s 2.48 of the State Environmental Planning Policy 2021 (T&I SEPP). Condition 2 of the agreed conditions of consent incorporates the requirements provided in their letter of response.

29. Sydney Water were also notified of the application in accordance with s 78(1)(c) of the Sydney Water Act 1994. As required under this section, the conditions of consent that were provided by Sydney Water have been incorporated into the agreed conditions of consent at conditions 9 and 10.

Conclusion

30. 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

31. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant further amending Development Application No. DA2023/0612, as amended by the Notice of Motion granted by the Court on 25 September 2024, in accordance with the following documents:

Tab	Description	Author	Date
1	BASIX Certificate No. 1730733S_03	Perez Architectural Services	20 September 2024
2	NatHERS Certificate No. 0009117110-04	Thermal Performance	20 September 2024

32. The Court orders:

1. The Appeal is upheld.

2. Development Application No. DA2023/0612, as amended, for the demolition of existing dwelling and ancillary structures and construction of a two-storey dwelling house, swimming pool and associated civil and landscape works on Lot A in DP310289, known as 36 Beach Street, Blakehurst, NSW, 2221, is determined by the grant of development consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 17 October 2024