Grounds v Georges River Council

[2024] NSWLEC 1419

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grounds v Georges River Council [2024] NSWLEC 1419

Hearing dates:

Conciliation conference on 19 and 20 June 2024

Date of orders:

24 July 2024

Decision date:

24 July 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.

(2) Development Application number DA 2020/160 for demolition and construction of a new Attached Dual Occupancy, a swimming pool for each dwelling, landscaping, site works and Torrens Title subdivision, at Lot 214 DP 12759, known as 8 Gooroa Street, Carrs Park, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – Attached Dual Occupancy – amended plans – height – landscaping - privacy – agreement.

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 4.3, 4.6, 5.21, 6.1, 6.2, 6.9
State Environmental Planning Policy (Biodiversity & Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards), Ch 2
State Environmental Planning Policy (Transport & Infrastructure) 2021, s 2.48

Category:

Principal judgment

Parties:

Jamie Grounds (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
A Jucha (Respondent)

Solicitors:
Solari Law (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/364013

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act, 1979 (EPA Act) by Jamie Ground (Applicant) against the Georges River Council’s (Respondent) refusal of Development Application No. DA 2020/160 lodged with Georges River Council on 10 May 2022.

2. This development application seeks development consent for demolition and construction of a new Attached Dual Occupancy, a swimming pool for each dwelling, landscaping, site works and Torrens Title subdivision, at Lot 214 DP 12759 known as 8 Gooroa Street Carrs Park.

3. The Court arranged a conciliation conference between the parties, under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act), which was held on 19 and 20 June 2024. At the commencement of proceedings, the parties undertook a view of the site and heard submissions from an adjoining neighbour.

4. The parties advised the Court that an agreement under s 34(3) of the LEC Act was reached. The decision agreed upon by the parties is that the appeal is upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment (Annexure A).

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. After reviewing the applicable material, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I have considered the jurisdictional matters relevant to this application as follows:

1. Pursuant to the Georges River Local Environmental Plan 2021 (GRLEP 2021), the subject site is zoned R2 Low Density Residential. In determining the development application, regard has been paid to the objectives of the zone and the parties agree that the proposal is consistent with these objectives.

2. Pursuant to cl 4.3(2) of the GRLEP 2021, the Site is subject to a maximum Height of Buildings (HOB) control of 9 metres. The development application proposes a maximum height (at lift overruns) of 9.3m above the development standard and is therefore non-compliant. The variation represents a 3.33% variation to the 9.0m HoB control.

3. A cl 4.6 of the GRLEP 2021, written request is provided by the Applicant and accepted by Council as providing sufficient reasoning to justify contravening the HOB development standard. The request notes that excavation undertaken previously on the site (within the footprint of the existing building) distorts the maximum building height plane causing a localised HOB exceedance that is not antipathetic to the development standards objectives. The parties also agree that updated Revised cl 4.6 Submission demonstrates that the exception to HOB is justified, the environmental planning grounds being that the modified terrain (existing excavated area within the footprint of the current dwelling) creates a low point not indicative of the fall across the site. This lower level also conflicts with the need to maintain floor levels that comply with the flood plain level requirements for the new building.

4. The parties are satisfied that the written request has adequately addressed the matters required to be demonstrated in cl 4.6(3) of the GRLEP 2021 and that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the R2 zone (as required by cl 4.6(4)(a) of GRLEP 2021). It is for the reasons above that I agree that the decision of the parties, to support the upholding of the cl 4.6 written request, is a decision that the Court could have made in the proper exercise of its functions.

5. In accordance with cl 5.21 of the GRLEP 2021, development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development meets the criteria set out in that provision. The parties agree that the flooding criteria have been considered by relevant experts and that the development satisfies the matters set out in cl 5.21(2) of the GRLEP 2021.

6. In accordance with cl 6.1 - Acid Sulfate Soils of GRLEP 2021, consideration has been given to the report submitted with the development application, entitled Preliminary Assessment Acid Sulfate Assessment. The report notes that excavation is required for the footings for the swimming pools and refers to field testing where no acid sulfate soils were detected. It concludes, and the parties agree, that an acid sulfate soils management plan is not required.

7. The requirements of cl 6.2 – Earthworks of GRLEP 2021 have been considered. In reaching an agreement, the parties note that the agreed conditions of consent attached to the s 34 Agreement adequately ameliorate any impacts that the earthworks may have on the locality and surrounding development.

8. The requirement in cl 6.9 – Essential Services of GRLEP 2021, seek to ensure that services that are essential for the development are available, or that adequate arrangements have been made to make them available when required. The parties agree that essential services have been considered, including correspondence from Sydney Water dated 18 August 2022 to that effect.

9. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (Certificate number: 1252375S_08).

10. Consideration has been given to State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity SEPP). In reaching agreement, the parties agree that the Landscape Plan as lodged with the DA, as well as the Amended Landscape Plan, both identify the removal of Trees T2, T5 and T6. Condition 1 of the Conditions contained in Annexure A to this judgment requires that the development is to be carried out strictly in accordance with the approved plans and support documents referred to within that condition, which includes the Amended Landscape Plan.

11. Consideration has been given to State Environmental Planning Policy (Transport & Infrastructure) 2021 (SEPP T&I). The development application was referred to Ausgrid pursuant to s. 2.48(2)(a) of SEPP T&I. Ausgrid responded and found the proposed development satisfactory subject to the imposition of various conditions.

12. Consideration has been given to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP). The Site is not identified for the purposes of Ch 2 of the Resilience SEPP as being within a coastal use area. In addition, the parties agree that the Site has been historically used for residential purposes and there is no evidence that any use listed in Table 1 of the contaminated land planning guidelines has occurred on site. Accordingly, the Site is not considered to be contaminated and is suitable for the proposed development. There is no change of use of the land, and accordingly, there is no requirement for the consent authority to consider a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusions

8. The Court notes:

1. That Georges River Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No. DA 2020/160 to rely on the following amended pans and documents:

1. Architectural plans:

Dwg No.	Description	Revision	Date
DA01	Site analysis/detailed survey	H	01/07/2024
DA02	Site roof plan	H	01/07/2024
DA03	Ground floor plan	H	01/07/2024
DA04	First floor plan	H	01/07/2024
DA05	Elevations	H	01/07/2024
DA06	Sections	H	01/07/2024
DA07	Environmental/construction management plan	H	01/07/2024
DA08	Subdivision plan	H	01/07/2024
DA09	FSR & the soil area calculations	H	01/07/2024
DA13	Sub floor plan	H	01/07/2024
Finishes schedule 01	H	01/07/2024
Finishes schedule 02	H	01/07/2024

2. Landscape plans:

Dwg No.	Description	Revision	Date
L01	Site front landscape plan	D	01/07/2024
L02	Site rear landscape plan	D	01/07/2024
L03	Existing tree plan	D	01/07/2024
L04	Plant schedule	D	01/07/2024
L05	Landscape guidelines plan	D	01/07/2024

3. Stormwater plans:

Dwg No.	Description	Revision	Date
H01F	Site and stormwater drainage plan	H	01/07/2024

4. BASIX Certificate 1252375S_08 dated 1July 2024.

5. The Clause 4.6 written request reflecting architectural plans Revision H.

9. The Court orders that:

1. The appeal is upheld.

2. Development Application number DA 2020/160 for demolition and construction of a new Attached Dual Occupancy, a swimming pool for each dwelling, landscaping, site works and Torrens Title subdivision, at Lot 214 DP 12759, known as 8 Gooroa Street, Carrs Park, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

S Harding AC

Acting Commissioner of the Court 

Annexure A 

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Decision last updated: 24 July 2024