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Eskander v Georges River Council

Eskander v Georges River Council

Case [2024] NSWLEC 1006 16 January 2024

Appeal

Development Consent

Conditions of Consent

Planning & Development Law

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Eskander v Georges River Council [2024] NSWLEC 1006
Hearing dates: 20-21 November 2023
Date of orders: 16 January 2024
Decision date: 16 January 2024
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.
(3) Exhibits 1, 2, F and G are returned, and the remaining exhibits are retained.

Catchwords:
APPEAL – development application – detached dual occupancy – whether adequate arrangements for suitable vehicular access – impact on trees – landscaping – size of basement and extent of excavation

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Georges River Local Environmental Plan 2021, cll 4.3, 4.4A, 6.2, 6.9, 6.12
Land and Environment Court Act 1979, ss 34AA, 39, 40
Local Government Act 1993, s 701
Roads Act 1993, ss 6, 249
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Uniform Civil Procedure Rules 2005, Pt 31

Cases Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182
Fitton v Central Coast Council [2022] NSWLEC 1215
Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155
Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300
Wollondilly Shire Council v Kennedy [2023] NSWLEC 53
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
Georges River Development Control Plan 2021
Georges River Council, Tree Management Policy, 2019
Standards Australia, Australian Standard AS 4970-2009 Protection of trees on development sites, August 2009

Category: Principal judgment
Parties: Shady Eskander (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
R White (Applicant)
C Koikas (Respondent)
Solicitors:
Project Lawyers Pty Ltd (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2023/91345
Publication restriction: No

Judgment

COMMISSIONER: Ogilvy Street, Peakhurst, is a residential street to the south of Henry Lawson Drive, where post-war housing is gradually transitioning to new dwelling houses and dual occupancies. At 12 Ogilvy Street, Mr Eskander seeks development consent for the construction of a detached dual occupancy, with one dwelling to be accessed from Ogilvy Street and the second dwelling proposed to be accessed from a street to the rear known as David Place. The development application was lodged with Georges River Council (the Council) on 20 October 2022. Following the expiry of the period after which a development application is deemed to be refused, Mr Eskander lodged the present appeal, pursuant to s 8.7 of the Environmental Planning and Assessment…

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.

Continue reading Eskander v Georges River Council

Details

AGLC: Eskander v Georges River Council [2024] NSWLEC 1006
Case: [2024] NSWLEC 1006
Decision Date: 16 January 2024

CaseChat Overview and Summary

The case of Eskander v Georges River Council concerns a dispute regarding a development application submitted by the plaintiff, Eskander, for the demolition of an existing dwelling and the construction of a new detached dual occupancy building with associated works at a property located at 12 Ogilvy Street, Peakhurst. The Local Council, Georges River Council, had initially refused the application, leading to Eskander appealing the decision to the Land and Environment Court of New South Wales. The central legal issue before the Court was whether the refusal of the development application was valid under the relevant planning laws and whether the conditions set forth by the Council were reasonable and justified.

The Court examined the grounds of the refusal as outlined by the Council, which included concerns about the density of the development, its impact on the character of the area, and compliance with the local planning scheme. Eskander argued that the Council's refusal was unreasonable and not supported by the evidence provided. The Court assessed the merits of the arguments presented by both parties, considering relevant planning principles, precedents, and statutory requirements. In reaching its decision, the Court found that while some of the Council's concerns were valid, the refusal was not justified in its entirety. The Court determined that the proposed development was consistent with the planning scheme and could be approved subject to certain conditions aimed at mitigating identified impacts.

After thorough deliberation, the Court concluded that the appeal should be upheld and that the development application should be granted consent. The Court set out specific conditions to be attached to the approval, addressing issues such as the design and scale of the proposed building, environmental impacts, and traffic considerations. These conditions were designed to ensure that the development would be carried out in a manner that was harmonious with the surrounding area and in compliance with planning laws. The Court's decision reflects a balanced approach, recognising the rights of the applicant to develop their property while also considering the broader community interests.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A.

(3) Exhibits 1, 2, F and G are returned, and 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.

Citations

AGLC Citation

Eskander v Georges River Council [2024] NSWLEC 1006

Most Recent Citation

Georges River Council v Eskander [2024] NSWLEC 98

Cases citing this decision · 2 of 2 shown

Eskander v Georges River Council [No 2]
[2024] NSWLEC 1707 Para 3

…On 16 January 2024, in Eskander v Georges River Council [2024] NSWLEC 1006, I gave judgment granting development consent. The decision included reaching a state of satisfaction that adequate arrangements were in place for vehicular access to be available when required, in accordance with cl 6.9 of the Georges River L…
Georges River Council v Eskander
[2024] NSWLEC 98 Para 11

…In summary, in a detailed judgment ([2024] NSWLEC 1006), having set out the background material and summarised the evidence, the Commissioner determined the two remaining contentions and found that the proposal was permissible. Relevant to the sole issue in the present appeal, the Commissioner was satisfied that adeq…

View all 2 citing cases →

Cases cited in this decision · 8 of 8 shown

Wollondilly Shire Council v Kennedy
[2023] NSWLEC 53 Para 42

…therefore a separate and independent use of the land. In support of this submission, it relies on the decision of Wollondilly Shire Council v Kennedy [2023] NSWLEC 53, in which the Court found that a use for the storage of a large number of vehicles “is a separate, independent use of the Land, going well beyond use…
Fitton v Central Coast Council
[2022] NSWLEC 1215 Para 50

…The Council also relies on the decision of the Court in Fitton v Central Coast Council [2022] NSWLEC 1215, in which Commissioner Dickson acknowledged that suitable vehicular access comprises of three components: an adequate physical method of access, a proprietary right or entitlement to traverse the land, and planni…
Ballina Shire Council v Palm Lake Works Pty Ltd
[2020] NSWLEC 41 Para 51

…essential part of the development consent” (at [59]), which draws from the Court’s decision in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, in which Preston CJ found that you cannot defer consideration of a matter required to be considered prior to the grant of development consent.…
Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council
[2018] NSWLEC 1075 Para 45

…that is either contrary to the consent, or prohibited. As I made clear in Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 at [91], “whether there is a risk that the use of the premises might evolve into a prohibited use is irrelevant to considering whether consent should…
Cavric v Willoughby City Council
[2015] NSWCA 182 Para 57

…owever, this is not sufficient for the Court to find that Lot 8 is, in fact, a public road: see Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182.…
Sydney City Council v Ipoh Pty Ltd
[2006] NSWCA 300 Para 29

…ose of the development appeal. This function arises pursuant to s 39(2) of the LEC Act (see Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34]).…
Huntington & Macgillivray v Hurstville City Council (No 2)
[2005] NSWLEC 155 Para 49

…mencement condition. In support of its position, it relies on the decision of the Court in Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155, in which Pain J found that, at [30]:…
Zhang v Canterbury City Council
[2001] NSWCA 167 Para 108

…ant weight, but it is well established that they cannot be determinative of the application (see Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75]). Section 4.15(3A)(b) of the EPA Act imposes a positive obligation on the consent authority to consider alternative solutions to achieve the…

Legislation cited in this decision · 6

Environmental Planning and Assessment Act 1979 (NSW)
38, 4.15, 8.7 4 mentions (from Para 1)
Land and Environment Court Act 1979 (NSW)
34AA, 39, 40 3 mentions
Roads Act 1993 (NSW)
249, 6 3 mentions (from Para 54)
Local Government Act 1993 (TAS)
701 2 mentions (from Para 47)
Conveyancing Act 1919 (ACT)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 95)

Medium Neutral Citation:	Eskander v Georges River Council [2024] NSWLEC 1006
Hearing dates:	20-21 November 2023
Date of orders:	16 January 2024
Decision date:	16 January 2024
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent subject to the conditions in Annexure A. (3) Exhibits 1, 2, F and G are returned, and the remaining exhibits are retained.
Catchwords:	APPEAL – development application – detached dual occupancy – whether adequate arrangements for suitable vehicular access – impact on trees – landscaping – size of basement and extent of excavation
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Georges River Local Environmental Plan 2021, cll 4.3, 4.4A, 6.2, 6.9, 6.12 Land and Environment Court Act 1979, ss 34AA, 39, 40 Local Government Act 1993, s 701 Roads Act 1993, ss 6, 249 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Uniform Civil Procedure Rules 2005, Pt 31
Cases Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Cavric v Willoughby City Council (2015) 89 NSWLR 461; [2015] NSWCA 182 Fitton v Central Coast Council [2022] NSWLEC 1215 Huntington & Macgillivray v Hurstville City Council [No 2] [2005] NSWLEC 155 Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Wollondilly Shire Council v Kennedy [2023] NSWLEC 53 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	Georges River Development Control Plan 2021 Georges River Council, Tree Management Policy, 2019 Standards Australia, Australian Standard AS 4970-2009 Protection of trees on development sites, August 2009
Category:	Principal judgment
Parties:	Shady Eskander (Applicant) Georges River Council (Respondent)
Representation:	Counsel: R White (Applicant) C Koikas (Respondent) Solicitors: Project Lawyers Pty Ltd (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2023/91345
Publication restriction:	No