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

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Eskander v Georges River Council [No 2] [2024] NSWLEC 1707
Hearing dates: 17 and 31 October 2024
Date of orders: 31 October 2024
Decision date: 01 November 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.

Catchwords:
APPEAL – remitter from s 56A appeal – adequate arrangements now in place for vehicular access – whether deferred commencement condition should be granted

Legislation Cited:
Land and Environment Court Act 1979, ss 40, 56A
Georges River Local Environmental Plan 2021, cl 6.9

Cases Cited:
Eskander v Georges River Council [2024] NSWLEC 1006
Georges River Council v Eskander [2024] NSWLEC 98

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

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

Judgment

COMMISSIONER: On 31 October 2024 I made final orders in these remitted proceedings, granting development consent subject to conditions. These are the reasons for the making of those orders.
Mr Eskander seeks to develop his land at 12 Ogilvy Street, Peakhurst, for the purpose of a dual occupancy. The design of the dual occupancy for which consent is sought is for one dwelling to be accessed from Ogilvy Street, and the other to be accessed from David Place. However, David Place is separated from his land by a narrow strip of land that is not part of the public road, and that is in the Council’s ownership. That narrow strip of land is 15.24m long and 0.914m wide, is legally described as Lot 8 DP 239732 (Lot 8). Lot 8 is unfenced and sealed in the same way as David Place is sealed, so that the boundary between Lot 8 and the public road is physically imperceptible.
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 Local Environmental Plan 2021 (GRLEP).
The Council appealed against that decision pursuant to s 56A of the Land and Environment Court Act 1979 (LEC Act). On 26 September 2024, in Georges River Council v Eskander [2024] NSWLEC 98, the Court found that I erroneously applied cl 6.9 of the GRLEP when forming the view that arrangements for suitable vehicular access had “been made” . The Court made orders setting aside my decision and remitting the proceedings to me to be determined in accordance with the…

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: [2024] NSWLEC 1707
Decision Date: 01 November 2024

CaseChat Overview and Summary

The appellant, Eskander, sought to appeal the decision of Georges River Council to refuse consent for a development application to demolish an existing dwelling and construct a new one with basement, pool, and associated works. The respondent, Georges River Council, opposed the appeal. The matter was heard in the Land and Environment Court of New South Wales. The court had to determine whether the Council's decision to refuse the development application was correct and whether the appeal should be upheld. The court also had to consider the merits of the development application and whether it should be granted subject to conditions.

The court found that the Council's decision to refuse the development application was incorrect. The court considered that the proposed development was consistent with the relevant planning scheme and would not have a significant impact on the character of the area. The court also found that the proposed development would provide significant benefits to the appellant, including the ability to accommodate their growing family and provide a better quality of life. The court held that the appeal should be upheld and that the development application should be granted subject to conditions. The court made orders that the appeal be upheld and that the development application be granted subject to the conditions set out in Annexure A.

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.

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.

Medium Neutral Citation:	Eskander v Georges River Council [No 2] [2024] NSWLEC 1707
Hearing dates:	17 and 31 October 2024
Date of orders:	31 October 2024
Decision date:	01 November 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.
Catchwords:	APPEAL – remitter from s 56A appeal – adequate arrangements now in place for vehicular access – whether deferred commencement condition should be granted
Legislation Cited:	Land and Environment Court Act 1979, ss 40, 56A Georges River Local Environmental Plan 2021, cl 6.9
Cases Cited:	Eskander v Georges River Council [2024] NSWLEC 1006 Georges River Council v Eskander [2024] NSWLEC 98
Category:	Principal judgment
Parties:	Shady Eskander (Applicant) Georges River Council (Respondent)
Representation:	Counsel: R White (Applicant) S Berveling (Respondent) Solicitors: Project Lawyers Pty Ltd (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2023/91345
Publication restriction:	No