Gable v Georges River Council

[2025] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gable v Georges River Council [2025] NSWLEC 1344

Hearing dates:

Conciliation conferences 8-9 May 2025

Date of orders:

19 May 2025

Decision date:

19 May 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2023/0527, as amended, for demolition of existing structures and construction of a dwelling house, cabana and swimming pool at Lot 5 in DP 112706 known as 48 Vista Street, Sans Souci is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – dwelling – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cll 2.7, 4.3, 4.4A, 6.1, 6.12, 6.2, 6.3, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 6, s 6.2

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

Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Maree Gable (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
N Hammond (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2024/425295

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application 2023/0527 (DA) for demolition, construction of a dwelling house, parking, swimming pool and cabana at Lot 5 DP 112706, known as 48 Vista Street, Sans Souci (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA 2023/0527 in accordance with the documents listed below (amended DA):

• Architectural Plans, Revision D, prepared by TCGD, dated 8 May 2025.

• Landscape Plan 01, Revision G, prepared by TCGD, dated 8 May 2025.

• BASIX Certificate No. 1406905S_03 dated 5 May 2025.

• NatHERS Certificate No. 0011892536 dated 5 May 2025.

• Stormwater Management Plan, Issue G, prepared by NY Civil Engineering, dated 8 May 2025.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 and 9 May 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

Jurisdictional Prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

8. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 30 December 2023. The Respondent notified the DA between 19 January 2024 to 9 February 2024. One submission was received. The parties have confirmed that they have considered the concerns raised.

Georges River Local Environmental Plan 2021

9. The site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP). The proposed development for a dwelling house is permitted with consent and I have had regard to the objectives of the zone.

10. The parties agree and I accept that the following applicable GRLEP provisions are met:

1. Clause 2.7 permits demolition with consent.

2. Clause 4.3(2) sets a maximum building height of 9m. The amended architectural plans prepared by Studio Parisi (architectural plans) demonstrate the amended application is below 9m, at 8.85m (drawing DA901).

3. Clause 4.4A exceptions to floor space ratio (FSR) applies to the site, in this instance being 0.455:1. The architectural plans demonstrates the amended DA is below the maximum FSR, at 0.453:1 (drawing DA701).

4. Clause 6.1 acid sulfate soils applies (ASS), however the proposed works will not lower the watertable below 1m AHD of adjacent ASS soils and a management plan is not required.

5. Clause 6.2 earthworks applies to the proposed development. The amended DA is accompanied by a Geotechnical Investigation prepared by Green Geotechnics Pty Ltd dated 13 September 2023 and further letter on the amended proposal. I accept that the parties have considered the provisions and the amended DA meets the provisions.

6. Clause 6.3 stormwater management applies to the development. I accept that the provisions of cl 6.3 are satisfied on the basis of the Stormwater Management Plan Issue G prepared by NY Civil Engineering dated 8 May 2025 and Stormwater Joint Expert Report that demonstrate the amended DA minimises stormwater impacts on site and on adjoining sites.

7. Clause 6.9 essential services applies to the amended DA. With consideration of existing services currently provided to the site I accept the parties’ agreement that the provisions have been satisfied.

8. Clause 6.12 landscaped areas applies to the amended DA. I accept the parties’ agreed submissions that the minimum 20% landscaped area has been provided and that appropriate plantings have been selected, as demonstrated by Landscape Plan 01 Revision G prepared by TCGD dated 8 May 2025. I accept the parties’ agreement that subclauses 6.12(4) and (5) are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

11. Chapter 6 applies as the site is located in the Georges River Catchment. I accept the agreement of the stormwater engineers in the joint expert report that the provisions of s 6.2 have been satisfied and that the proposed development will lead to a neutral or beneficial effect on water quality and that the proposed OSD will appropriately manage water on site.

State Environmental Planning Policy (Sustainable Buildings) 2022

12. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate (1406905S_03) dated 5 May 2025 that meets the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA does not involve a change of use and has a history of residential use. There is no evidence of prior contamination. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Transport and Infrastructure) 2021

14. Section 2.48 development likely to affect an electricity transmission or distribution network applies to the site. The DA was referred to Ausgrid who did not raise any objections subject to conditions that have been included in Annexure A.

Heads of consideration

15. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

16. 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.

17. 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.

18. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders:

19. The Court orders:

1. The Appeal is upheld.

2. Development Application DA2023/0527, as amended, for demolition of existing structures and construction of a dwelling house, cabana and swimming pool at Lot 5 in DP 112706 known as 48 Vista Street, Sans Souci is determined by the grant of consent subject to the conditions at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (379 KB, pdf)

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Decision last updated: 19 May 2025