El Khouri v Gemaveld Pty Ltd - [2023] NSWSC 25

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25
Hearing dates: 28 November and 15 December 2022
Decision date: 02 February 2023
Jurisdiction: Equity
Before: White J
Decision:
I answer the questions remitted as follows:
(1) Q: For the purposes of clause 4.3(2) of the Kogarah LEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument?
A: Yes, but this did not appear from the plans submitted to the consent authority.
(2) Q: If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent?
A: No.
(3) Q: For the purposes of the notification of the DA, was a written notice forwarded to the Third Applicant within the meaning of the Georges River Council – Community Engagement Strategy 2018 – 2028 prior to 7 April 2022?
A: Unnecessary to answer.
(4) Q: If the answer to (3) is no, having regard to the environmental impacts of the proposed development on the applicants was any denial of procedural fairness material?
A: Does not arise.

Catchwords:
ENVIRONMENT AND PLANNING – judicial review of decision to grant development consent to respondent for erection of new dwelling-house and associated structures – development consent granted to respondent by a Commissioner of the Land and Environment Court on a consent basis without intervention by applicants – where applicants contend that the Land and Environment Court as consent authority had no jurisdiction to grant consent because height limit was exceeded and there was no application to vary the standard as required by the Local Environmental Plan – factual questions arising on summons for judicial review remitted to Equity Division for determination - where the parties dispute the method of calculating the height of a dwelling-house in accordance with cl 4.3 of the Kogarah Local Environmental Plan 2012 – where respondent alleges that applicants excavated parts of the site said to contravene height limit – held that the proposed building exceeds maximum building height, though that is not apparent from the plans submitted to the consent authority – held that applicants did not excavate relevant parts of respondent’s land – unnecessary to answer other questions

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW), s 34(3)
Supreme Court Act 1970 (NSW), ss 46, 51(4)
Environmental Planning and Assessment Regulation 2000 (NSW)

Cases Cited:
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867
Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182
Young v King [2016] NSWCA 282

Category: Procedural rulings
Parties: Peter…

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: [2023] NSWSC 25
Decision Date: 02 February 2023

CaseChat Overview and Summary

The case of El Khouri v Gemaveld Pty Ltd involved a challenge to the grant of development consent by Gemaveld Pty Ltd for the erection of a new dwelling-house and associated structures. The applicants, El Khouri, contested the decision of the Land and Environment Court, arguing that the court lacked jurisdiction to grant consent as the height limit was exceeded and there was no application to vary the standard as required by the Local Environmental Plan. The applicants sought judicial review of the decision, raising factual questions about the calculation of the height of the proposed dwelling and the excavation of parts of the site. The matter was heard in the Supreme Court of New South Wales, Equity Division.

The primary legal issues before the court were whether the proposed building exceeded the maximum building height and whether the applicants had excavated parts of the respondent's land in contravention of the height limit. The court had to determine if the Land and Environment Court had jurisdiction to grant consent and whether the applicants had grounds for seeking judicial review. The interpretation of the Local Environmental Plan and the factual circumstances surrounding the proposed development were central to the court's analysis.

The court found that the proposed building exceeded the maximum building height, although this was not evident from the plans submitted to the consent authority. The court also determined that the applicants did not excavate relevant parts of the respondent's land. The court held that the factual questions raised by the applicants required resolution by the Equity Division. Consequently, the court remitted these questions back to the Equity Division for determination. The court did not need to answer other questions raised by the applicants as the determination of the factual issues was sufficient to resolve the jurisdiction and consent issues.

The final orders of the court were that the questions of whether the proposed building exceeded the maximum building height and whether the applicants excavated relevant parts of the respondent's land were remitted to the Equity Division for determination. The court did not provide a definitive resolution on the jurisdiction of the Land and Environment Court to grant consent but directed the Equity Division to consider the matter further in light of the factual findings.

Orders