Green v Georges River Council

[2023] NSWLEC 1483

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Green v Georges River Council [2023] NSWLEC 1483

Hearing dates:

Conciliation conference 16, 17 August 2023

Date of orders:

25 August 2023

Decision date:

25 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application 2020/0460 for a boundary adjustment by the re-subdivision of the existing two lots of land being Lots 1 and 2 in Deposited Plan 506903 and known as 2A Woodlands Avenue, Lugarno, and ancillary stormwater infrastructure and driveway works, is determined by the grant of consent subject to the conditions in the annexure marked A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – conciliation conference - amended plans and documents – agreement reached – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Georges River Local Environmental Plan 2021, cl 1.8A

Kogarah Local Environmental Plan 2012, cll 2.3, 2.6, 4.1, 6.1, 6.7

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

Rural Fires Act 1997

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11, Pt 11.2, s 6.65

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

Category:

Principal judgment

Parties:

Russell Green (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Hill (Applicant)
C Koikas (Respondent)

Solicitors:
Brock Partners Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/78761

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant, Russell Green, against the actual refusal of development application number DA2020/0460. The application, as amended, seeks consent for a boundary adjustment by the re-subdivision of two existing lots, those being Lot 1 and 2 DP506903. The site of the proposed development is known as 2A Woodlands Avenue, Lugarno.

2. A conciliation conference was held between the parties pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) on 16 and 17 of August 2023. I presided over the conciliation conference. At the conciliation conference the parties reached an agreement based on amended plans, documents and the evidence contained in the joint expert reports. The parties’ agreement is for the grant of consent to the application, as amended, subject to the annexed conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The owners of the site have provided their consent to the lodgement of the development application.

2. Georges River Council (as land owner) has provided its consent in relation to the imposition of condition 37 and 50 which involve proposed vehicular access through Taylors Reserve (Lot 1 and 2 in DP 1200178).

3. The development application was notified to adjoining and proximate properties for a period of 14 days. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

4. The proposed development is integrated development as it requires an approval under the Rural Fires Act 1997: s 4.46 of the EPA Act. The development application was referred to the Rural Fire Service and a Bushfire Safety Authority was issued on 1 February 2022.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies. As required by s 4.6 of SEPP Resilience and Hazards, consideration has been given as to whether the subject site is contaminated. The parties confirm that a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

6. The site is located within the area identified as the Georges River Catchment pursuant to Ch 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which continues to apply to the development pursuant to the savings provision in s 6.65 of the SEPP B&C. Based on the Statement of Environmental Effects dated November 2022, and the Stormwater Management plans, I have considered the matters and principles contained in Pt 11.2 of the SEPP B&C.

7. Georges River Local Environmental Plan 2021 (LEP 2021) commenced on 8 October 2021, however pursuant to cl 1.8A of LEP 2021, Kogarah Local Environmental Plan 2012 (LEP 2012) continues to apply as the matter is not finally determined prior to the commencement of LEP 2021. The site is zoned R2 Low Density Residential. Subdivision is permitted with consent pursuant to cl 2.6 of LEP 2012. In determining the development application, I have had regard to the objectives of the zone; cl 2.3(2) of LEP 2012.

8. Pursuant to cl 4.1 of LEP 2012, the minimum subdivision lot size for the site is 550m² which is met by the proposed development. In reaching agreement, the parties have agreed on the designation of building envelopes on the proposed lots which allow for future residential development to meet the relevant planning controls for floor space ratio and gross floor area.

9. Pursuant to cl 6.1 Acid Sulfate Soils in LEP 2012, the southern portion of the site is mapped as Class 5 Acid Sulfate soil. The works proposed are not within 500m of any other class of Acid Sulfate soil and will not result in the water table being lowered below 1m AHD. An acid sulfate soil management plan is not required.

10. Pursuant to cl 6.7 Essential services of LEP 2012, the development consent cannot be granted unless the consent authority is satisfied that services essential for the development are available or that adequate arrangements for their provision have been made. On the basis on the amended plans the parties agree, and I accept that cl 6.17 of LEP 2012 is satisfied.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that Georges River Council as the relevant consent authority has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA2020/0460 to rely upon the following amended plans and documents:

Description	Reference	Date	Revision	Prepared by
Building Envelope Plan 1 and subdivision layout	1921-A01	17 August 2023	D	ATJ Architects
Arboricultural Impact Assessment Report	3 July 2023	Version 3	Tarek Hussien of Expert Arboricultural
Stormwater Drainage Plan for Proposed Subdivision	2283- Sheets 1 & 2	15 August 2023	G	John Romanous and Associates Pty Ltd
Driveway Profile	1921-A03	14 July 2023	B	ATJ Architects
Survey	19839-23	Amended 8 August 2023	J P Bates and Inwood Registered Surveyors
Stormwater Drainage Flow Assessment Report, being Annexure B to joint expert stormwater report filed 26 July 2023	1036/R5	26 July 2023	Revision 5	John Romanous and Associates Pty Ltd

7. The Court notes that the applicant filed the amended development application with the Court on 17 August 2023.

8. The Court orders that:

1. The appeal is upheld

2. Development application 2020/0460 for a boundary adjustment by the re-subdivision of the existing two lots of land being Lots 1 and 2 in Deposited Plan 506903 and known as 2A Woodlands Avenue, Lugarno, and ancillary stormwater infrastructure and driveway works, is determined by the grant of consent subject to the conditions in the annexure marked A.

D Dickson

Commissioner of the Court

**********

Annexure A

Amendments

29 August 2023 - Correction to respondent name on cover sheet

02 August 2024 - Pursuant to and in accordance with r 36.17 of the Uniform Civil Procedure Rules 2005, Annexure A of the Condition of Consent dated 25 August 2023 is amended under the heading Deferred Commencement, at paragraph (2) on page (2), which presently reads "12 months" to read "36 months".

Decision last updated: 02 August 2024