Georges River Council v Eskander

[2024] NSWLEC 98

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georges River Council v Eskander [2024] NSWLEC 98

Hearing dates:

21 May 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [69]

Catchwords:

APPEAL — Appeal on a question of law — Appeal pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) — Appeal against a Commissioner’s decision — Whether Commissioner was satisfied that adequate arrangements had been made for suitable vehicular access when required — The fact that there was an existing application to obtain an easement cannot amount to an arrangement — Proceedings remitted back to Commissioner for consideration

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17

Georges River Local Environmental Plan 2021, cl 6.9

Land and Environment Court Act 1979 (NSW), ss 40, 56A

Cases Cited:

4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; (1999) 105 LGERA 370

Crighton Properties Pty Ltd v Kiama Municipal Council [2006] NSWLEC 297; (2006) 146 LGERA 271

El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78

Eskander v Georges River Council [2024] NSWLEC 1006

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Category:

Principal judgment

Parties:

Georges River Council (Appellant)
Shady Eskander (Respondent)

Representation:

Counsel:
M Seymour SC (Appellant)
T F Robertson SC (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Appellant)
Project Lawyers (Respondent)

File Number(s):

2024/00051891

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

[2024] NSWLEC 1006

Date of Decision:

16 January 2024

Before:

Gray C

File Number(s):

2023/00091345

Judgment

Nature of appeal and outcome

1. In these Class 1 proceedings brought pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (‘Court Act’), Georges River Council (‘Council’) appeals on a question of law against the decision of a Commissioner of the Court to uphold an appeal by Shady Eskander and to grant development consent for the demolition of an existing dwelling and the construction of a detached dual occupancy at 12 Ogilvy Street, Peakhurst (‘site’).

2. Council has raised two grounds of appeal relating to the manner in which the Commissioner considered and applied cl 6.9 of the Georges River Local Environmental Plan 2021 (‘GRLEP’) which relevantly provides that development consent “must not be granted” unless the consent authority is satisfied that “adequate arrangements have been made to make [suitable vehicular access] available when required”. Effectively, the sole issue pressed by Council in this appeal is whether cl…