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

1. 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.

2. 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.

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 Local Environmental Plan 2021 (GRLEP).

4. 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 decision of the Court on appeal.

5. Whilst the whole proceedings were remitted, the Council no longer presses any of the contentions considered and determined by me on 16 January 2024. For reasons that I will outline shortly, this also includes the contention concerning cl 6.9 of the GRLEP. As such, the Council agrees that there is no basis upon which to refuse the development application, and that development consent can be granted subject to conditions of consent.

6. I nonetheless need to determine whether cl 6.9 of the GRLEP is satisfied, when it is understood in the manner outlined by Robson J in Georges River Council v Eskander, at, in particular [55]-[57] of his Honour’s judgment.

7. Following that judgment, events have moved on and the Class 3 proceedings, which were lodged by the applicant pursuant to s 40 of the LEC Act, were finalised by the making of orders with the consent of the parties. Those orders were made on 14 October 2024, and include an order for the imposition of an easement over Lot 8 in favour of the applicant.

8. On 16 October 2024, the applicant lodged a request with NSW Land Registry Services for the registration of the easement over Lot 8. At present, the easement is not yet registered on the title of Lot 8. However, there is a notation on the title of Lot 8, which refers to DP1311306, which is a plan of the proposed easement. I am informed that, for the easement to be registered on the title, the parties will need to make an application to the Court to vary the orders made on 14 October 2024, as the current form of the orders does not meet the requirements of Land Registry Services.

The requirements of cl 6.9 are satisfied

9. The parties agree, and I accept, that the order made on 14 October 2024 imposing the easement is sufficient to reach the state of satisfaction required by cl 6.9 of the GRLEP, that “adequate arrangements have been made” to make vehicular access available when required. All that remains is a process to finalise the registration of the easement on the title of Lot 8.

10. Therefore, the requirements of cl 6.9 of the GRLEP are now satisfied. With these requirements satisfied and the Council no longer pressing any of the contentions originally raised in these proceedings, there is no longer any basis on which development consent ought to be refused.

The appropriate conditions of consent

11. The parties agree that the appropriate conditions of development consent are those in Annexure A to the judgment of 16 January 2024.

12. However, the parties remain in disagreement as to whether the deferred commencement condition is required. The deferred commencement condition specifies:

“Part A – Deferred Commencement

The applicant must submit adequate written documents and plans to address the following issues effectively to the satisfaction of Council:

An easement for a right of carriageway over Lot 8 in DP 239732 for the benefit of Lot C of DP 342717, to provide vehicular access to the secondary dwelling.”

13. The applicant submits that, with the order of 14 October 2024 having been made and cl 6.9 being satisfied, there is no basis upon which to impose a deferred commencement condition requiring the easement.

14. On the other hand, the Council submits that the deferred commencement condition is appropriate in circumstances where the easement remains to be finally registered on the title of Lot 8, and where there remain steps to finalise that registration process.

15. Whilst there is merit to what the applicant says, in my findings on 16 January 2024, the imposition of the deferred commencement condition was a consequence of my satisfaction of the matters in cl 6.9 of the GRLEP. I was found to have erroneously applied cl 6.9, and that the arrangements that formed the basis for my satisfaction did not amount to arrangements that “have been made” (Georges River Council v Eskander at [62]). His Honour found that the opinion of satisfaction reached in the original decision depended on success in obtaining an easement, whereas there was a prospect that such an easement would not be obtained (Georges River Council v Eskander at [60]). His Honour found that this does not meet the meaning of arrangements that “have been made” (at [61]).

16. I am now satisfied, by different means, that adequate arrangements have been made for suitable vehicular access to be available when required, for the reasons given above at [10]. I remain of the view that the appropriate consequence of that finding is the imposition of a deferred commencement condition, as the consent should not become operative until the easement is actually in place. I accept the Council’s submission in that regard. This is because without the easement, there is no lawful way in which to access one of the dwellings that forms part of the dual occupancy. The design of the detached dual occupancy relies on there being vehicular access to that dwelling from David Place. Given that the design of the dual occupancy is approved by the operation of the development consent, I consider that the consent ought not become operative until it is lawful to obtain vehicular access from David Place over Lot 8. This is what is effected through the deferred commencement condition.

The final orders

17. For those reasons, on 31 October 2024 I made orders granting development consent, subject to conditions of consent, including the deferred commencement condition quoted above at [13].

Annexure A

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Amendments

01 November 2024 - Amendment to attach Annexure A

Decision last updated: 01 November 2024