El Mir v Georges River Council

[2023] NSWLEC 1704

Land and Environment Court

New South Wales

Medium Neutral Citation:

El Mir v Georges River Council [2023] NSWLEC 1704

Hearing dates:

Conciliation conference on 13-15 November 2023

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to Development Application No. DA2022/0400 for demolition works and construction of a dual occupancy at Lot 40 in Deposited Plan 209573, known as 26 Whitegates Avenue, Peakhurst Heights NSW 2210 subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: dual occupancy development in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

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

Georges River Local Environmental Plan 2021, cll 4.1, 4.1B, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.9, 6.12, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 11, ss 6.65, 11.6, 11.7

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Department of Urban Affairs and Planning, Georges River Catchment Regional Planning Strategy

Georges River Council Community Engagement Strategy 2018-2028

Georges River Development Control Plan 2012

Category:

Principal judgment

Parties:

Mustapha El Mir (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Chryssochoides (Solicitor) (Applicant)
A Rutherford (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/180995

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Georges River Council (the Respondent) of development application DA 2022/0400 seeking consent for demolition works and construction of a dual occupancy dwelling, and associated landscape and site works at 26 Whitegates Avenue, Peakhurst Heights.

2. The appeal was listed for mandatory conciliation on 13 November 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. The Applicant amended the proposal prior to the conciliation conference, which had the effect of resolving the contentions. As a consequence, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was submitted to the Court on 15 November 2023.

4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

5. 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [39].

6. I formed an opinion of satisfaction that each of the jurisdictional requirements identified by the parties have been met, for the reasons that follow.

7. The site is located within the R2 Low Density Residential zone according to the Georges River Local Environmental Plan 2021 (GRLEP), in which consent for dual occupancy development is permitted with consent where consistent with the following objectives for development in the R2 zone:

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

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

•  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.

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

8. While dual occupancy development is permissible in the R2 zone, cl 4.1B(2) of the GRLEP sets out the minimum lot sizes and special provisions for certain dwellings that are contravened by the proposal.

9. In particular, lots on which dual occupancies are proposed in the R2 zone are required to be a minimum of 650m², and have a lot width of no less than 15m at the front building line.

10. The development application is supported by a request to vary the minimum lot size standard at cl 4.1B, authored by Nauka Project Development dated 13 November 2023 (the written request).

11. The written request identifies the area of the site to be 648.2m², which is 1.8m² less than the minimum area required by cl 4.1B.

12. The written request asserts compliance with the Minimum Lot size standard is unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding the non-compliance.

13. For completeness, the objectives of the standard at cl 4.1B of the GRLEP are as follows:

(a)  to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure that dual occupancies in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development,

…

(d)  to minimise any likely adverse impact of the development on the amenity of the area,

(e)  where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots.

14. The above objectives are asserted by the written request to be achieved because firstly, while the site area is not 650m², the width of the lot at the front building line exceeds the 15m required by the standard, at column 4 of cl 4.1B(2). Secondly, the setbacks, private open space and landscaped areas, and car parking controls found in the Georges River Development Control Plan 2012 (GRDCP) are achieved, ensuring that the low-density scale and character of the R2 zone is retained. Thirdly, adverse impacts arising from solar access, overshadowing and privacy, are no more than can be expected from a development on a lot that complies with the numerical standard at cl 4.1B. Fourthly, the extent of variation, being 0.27% of the site area, is negligible which supports the assertion that any likely adverse impact is minimised.

15. I accept the reasons advanced in the written request and am satisfied that compliance with the numerical standard is unnecessary or unreasonable in the circumstances of this case, pursuant to cl 4.6(3)(a) of the GRLEP.

16. I also accept that the environment planning grounds advanced in the written request are sufficient to justify the contravention of the standard given the minor nature of the variation that does not prevent the proposal from complying with side setbacks and landscaped area required by the GRDCP, and from achieving a front setback that is consistent with neighbouring properties.

17. I am satisfied that the environmental planning grounds advanced in the written request are sufficient to justify the contravention, and so I am also satisfied that the written request has adequately addressed the matter required to be demonstrated by cl 4.6(3) of the GRLEP.

18. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the GRLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the minimum lot size standard and the objectives for development in the R2 Low Density Residential Zone.

19. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the GRLEP.

20. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.1B is justified.

21. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the minimum lot size standard and the objectives for development within the R2 Low Density Residential Zone at [7], for the reasons given in the request.

22. I have also considered whether the contravention of the development standard raises any matter of significance for state or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the GRLEP and I find no grounds on which the Court should not uphold the written request.

Other provisions of the Georges River Local Environmental Plan 2021

23. The proposed development complies with the height of building standard at cl 4.3 of the GRLEP, and with the floor space ratio standard at cl 4.4 of the GRLEP.

24. While not identified by the parties, a heritage item in the form of a Fig Tree is identified in the vicinity of the site, according to Sch 5 of the GRLEP. The Fig Tree, visible from the site, is located in the nearby Lambert Reserve. While cl 5.10(5) of the GRLEP provides for the preparation of a heritage management document to assist the assessment of the effect of the proposal on the heritage item, I accept the heritage listed tree is sufficiently distant from the site that such a document is not necessary.

25. The site is located within an area identified on the relevant map at cl 6.1(2) of the GRLEP classified as Class 5 Acid Sulfate Soils (ASS), and is within 500m of ASS of another class. However, due to the limited earthworks proposed to give effect to the development, the parties agree, as I do that the water table is unlikely to be lowered by the development.

26. The extent of earthworks can be determined by reference to the details of the on-site detention tank depicted on the Stormwater Drainage Plans prepared by LMW Design Group. On the basis of these details, excavation for the purpose of onsite stormwater detention is a maximum in the order of 850mm where discharge and silt arrestor pits are proposed. I note the parties have considered those matters to be considered at cl 6.2(3) of the GRLEP and conclude the earthworks to be satisfactorily addressed to the extent they are relevant or applicable.

27. On the basis of those Stormwater Drainage Plans, and the Landscape Plan, Drawing 2020-104 prepared by UGD dated 14 February 2023 (Landscape Plan), I accept that the development is designed to maximise the use of water permeable surfaces, includes on-site stormwater detention so as to avoid significant adverse impacts of stormwater runoff on both adjoining properties and the downstream stormwater system, and minimises the impact on public drainage systems, pursuant to cl 6.3 of the GRLEP.

28. As the site is located in an existing urban setting, I am satisfied that the site is serviced by those essential services listed at cl 6.9 of the GRLEP.

29. Clause 6.12 of the GRLEP sets standards in respect of landscaped areas. Parties have formed an opinion of satisfaction that the development allows for the establishment of appropriate plannings, maintains privacy between dwellings, does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on adjacent land, enables the establishment of indigenous vegetation and integrates with existing vegetation to protect existing trees and natural landscape features in accordance with cl 6.12(4) of the GRLEP. Such an opinion is formed on the basis of the Landscape Plan, that depicts the location and species of landscape plantings, and contains calculations to the effect that a landscape area of 36% is proposed, which exceeds the quantum of 25% required by cl 6.12(5)(c) of the GRLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

30. As the site is within the Georges River Catchment, Chapter 11 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) applies to the land, notwithstanding its repeal in November 2022, by virtue of the savings provision in s 6.65 of the Biodiversity & Conservation SEPP.

31. The general principles at s 11.6 of the Biodiversity & Conservation SEPP require the aims and objectives of Chapter 11 to be taken into account along with the likely effect of the proposal on adjacent or downstream local government areas, the cumulative impact of the proposal on the Georges River and its tributaries, as well as relevant plans of management and policies that may apply and the Georges River Catchment Regional Planning Strategy. Finally, s 11.6 also requires any feasible alternatives to development to be taken into account.

32. The parties have considered and agreed that the proposed development achieves the aims and objectives of Chapter 11 and that there are appropriate stormwater and drainage mechanisms forming part of the proposed development to mitigate any impacts on the Georges River, when the Stormwater Drainage plans are understood.

33. That part of s 11.7 that is applicable has also been taken into account by considering the likely disturbance of ASS at [25], and the proposed stormwater drainage considered at [27].

State Environmental Planning Policy (Sustainable Buildings) 2022

34. A BASIX Certificate (Certificate No. 1152924M_07 dated 20 October 2023) accompanies the application, prepared by Sustainability-Z Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

35. I have considered whether the site is contaminated pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the statement by the Respondent, informed by Council’s planning records, I accept there is no evidence to suggest the land is contaminated. The Site is therefore considered suitable for the proposed use given that contamination is unlikely, and no remediation measures have been identified as being necessary.

Conclusion

36. 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.

37. 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.

38. The Court notes that:

1. The development application is accompanied by the consent of the owner of the land, and was publicly notified in accordance with Georges River Council Community Engagement Strategy 2018-2028 between 23 September 2022 and 7 October 2022.

2. The Court notes that Georges River Council, as the relevant consent authority, has approved the amendment of the development application under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) to amend the Development Application No. DA2022/0400 to rely on the following amended plans and documents:

Description	Reference No.	Date	Revision	Prepared by
Site Plan	2	-	Issue K	Mitz Design
Demolition Plan	3	-	Issue K	Mitz Design
Ground Floor Level	4	-	Issue K	Mitz Design
First Floor	5	-	Issue K	Mitz Design
Level
Roof Plan	6	-	Issue K	Mitz Design
Elevations	7	-	Issue K	Mitz Design
Elevations	8	-	Issue K	Mitz Design
Section	9	-	Issue K	Mitz Design
Driveway Gradient	10	-	Issue K	Mitz Design
Window Schedule	11	Issue K	Mitz Design
Materials and Finishes	12	Issue K	Mitz Design
General Building Specification	14	Issue K	Mitz Design
General Building Specification	15	Issue K	Mitz Design
Shadow Diagram 9am June 21	16	Issue K	Mitz Design
Shadow Diagram 12pm June 21	17	Issue K	Mitz Design
Shadow Diagram 3pm June 21	18	Issue K	Mitz Design
Site Analysis Plan	19	Issue K	Mitz Design
Waste Management Plan	21	Issue K	Mitz Design
Site Plan	22	Issue K	Mitz Design
Landscape Plans for Development Application	2020-104	14 November 2023	Unique Garden Design Consulting
BASIX Certificate No. 1152924M_07	20 October 2023	-	Sustainability-Z Pty Ltd
Site and Ground Floor Stormwater Drainage Concept Plan	D3	November 2023	D	LMW Design Group
Details of on- site detention for Unit 1	D4	13 November 2023	B	LMW Design Group
Details of on- site detention for Unit 2	D4A	November 2023	B	LMW Design Group
Roof and First Floor Stormwater Drainage Concept Plan	D5	November 2023	D	LMW Design Group
Cl 4.6 Written Request	13 November 2023	Nauka Project Development

3. The Amended plans and other documents were filed with the Court on 14 November 2023.

Orders

39. The Court orders that:

1. The Appeal is upheld;

2. Development consent is granted to Development Application No. DA2022/0400 for demolition works and construction of a dual occupancy at Lot 40 in Deposited Plan 209573, known as 26 Whitegates Avenue, Peakhurst Heights NSW 2210 subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A (316837, pdf)

Decision last updated: 23 November 2023