Jamisa Architects Pty Ltd v Georges River Council

[2025] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jamisa Architects Pty Ltd v Georges River Council [2025] NSWLEC 1117

Hearing dates:

Conciliation Conference 13, 14 February 2025

Date of orders:

28 February 2025

Decision date:

28 February 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA 2023/0458 (as amended) for the demolition of the existing structures on Lot 15 in Deposited Plan 13518 known as 3 Oberon Street, Blakehurst (Lot 15), a boundary adjustment between Lot 14 in Deposited Plan 13518, known as 5 Oberon Street, Blakehurst, and Lot 15, and the construction of a new two storey dwelling together with a detached secondary dwelling, swimming pool, fencing, landscaping and various site works at Lot 15, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – Residential development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.15

Land and Environment Court Act 1979, ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021 s 38

Georges River Local Environmental Plan 2021, cll 4.1, 4.3, 4.4, 5.4, 6.1, 6.2, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, ss 4.1, 4.2

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.66

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

Category:

Principal judgment

Parties:

Jamisa Architects Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Perkins (Solicitor) (Applicant)
S Wilson (Solicitor) (Respondent)

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

File Number(s):

2024/292376

Publication restriction:

Nil

Judgment

Introduction

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA2023/0458) (Development Application) seeking consent for the demolition of existing structures and construction of a two-storey dwelling, swimming pool, fencing, landscaping and detached secondary dwelling on land identified as Lot 15 in Deposited Plan 13518, also known as 3 Oberon Street, Blakehurst (Lot 15) and boundary adjustment between Lot 15 and Lot 14 in Deposited Plan 13518 also known as 5 Oberon Street, Blakehurst (Lot 14), collectively, the Subject Land.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 18 October 2023.

4. The Development Application was notified between 19 October and 23 November 2023. One submission was received during the notification period.

5. The Development Application was refused by the respondent on 20 March 2024.

6. The proceedings were commenced on 9 August 2024, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 13 and 14 February 2025.

8. At the site view on 13 February 2025, the Court inspected the Subject Land and walked parts of surrounding streets with the parties and their experts.

9. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application, as amended, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

10. Amended plans and documents were provided to the Court on 14 February 2025 (cited at [36]) (Amended Development Application). The amendments include:

1. the addition of a portico at the front of the dwelling;

2. changes to the front façade to increase visual verticality;

3. reduction in garage width to 4.8m;

4. increasing the setback of the garage; and

5. a revised stormwater plan.

11. 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.

12. 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.

Public submissions

13. As set out at [4], the Development Application was publicly notified from 19 October to 23 November 2023.

14. One submission was received in response to the notification raising issues regarding appropriate stormwater drainage.

15. I am satisfied that the written submission received has been taken into consideration in the assessment and determination of the Amended Development Application and agreed conditions of consent.

Jurisdictional considerations

16. As the presiding Commissioner, 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). I form this state of satisfaction for the reasons that follow.

Owner’s consent

17. The registered proprietors of Lots 14 and 15 provided their signed owners’ consent in relation to the Development Application (see Class 1 Application, tabs 3 and 4).

State Environmental Planning Policy (Resilience and Hazards) 2021

18. I accept the parties’ submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and Lot 15 is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

19. The parties agree that State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the Amended Development Application (see State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1 and 4.2).

20. BASIX Certificate No. 1349993M_06 dated 12 February 2025 is included in the Amended Development Application.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) applies to the Subject Land as it is located within the Georges River Catchment. The parties agree that the Amended Development Application is consistent with the requirements for developments within the Georges River Catchment and will not result in any adverse impact on such catchments. Having regard to the agreement of the parties and the analysis set out in the Delegated Assessment Report dated 20 March 2024 (Respondent Bundle, tab 8, pp 22-26) (Assessment Report), I confirm that I have considered, and am satisfied of, the matters set out in Ch 6 that are relevant to the proposal.

State Environmental Planning Policy (Transport and Infrastructure) 2021

22. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the Amended Development Application as overhead powerlines and unground cables have been identified in the vicinity of the Subject Land.

23. Pursuant to s 2.48(2) of the TI SEPP, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (being Ausgrid in this case), inviting comments about potential safety risks, and take into consideration any response to the notice that is received. The Development Application was consequently referred to Ausgrid pursuant to s 2.48 of the TI SEPP.

24. On 1 November 2024, Ausgrid provided its response, stating that the proposal was satisfactory subject to the imposition of specified conditions. Ausgrid’s conditions of consent are incorporated in the agreed conditions of consent (see Condition 7 in Annexure A).

Georges River Local Environmental Plan 2021 (GRLEP)

25. The Site is zoned R2 Low Density Residential under the GRLEP. Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity.

• To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.

26. Pursuant to cl 4.1 of the GRLEP (Minimum subdivision lot size), the minimum lot size for each of Lots 14 and 15 is identified on the minimum lot size map as 450m². The proposed boundary adjustment between Lots 14 and 15 will result in both lots exceeding the minimum lot size of 450m².

27. Pursuant to cl 4.3 of the GRLEP (Height of buildings), Lot 15 is subject to a maximum building height of 9m. The parties agree that the Amended Development Application complies with this standard.

28. Pursuant to cl 4.4 of the GRLEP (Floor space ratio), Lot 15 is subject to a maximum floor space ratio of 0.55:1. The parties agree that the Amended Development Application complies with this standard.

29. Pursuant to cl 5.4(9) of the GRLEP (Controls relating to miscellaneous permissible uses), secondary dwellings on land other than rural zones must not exceed either 60m² or 10% of the total floor area of the principal dwelling, which ever is the greater. The parties agree that the proposed floor area of the secondary dwelling is 34m² and therefore in conformance with cl 5.4.

30. Pursuant to cl 6.1 of the GRLEP, the parties agree that Lot 15 is mapped as “Class 5” on the Acid Sulfate Soils Map. Having regard to the Assessment Report (p 36), cl 6.1(3) is not enlivened as the adjacent lower class land is not below 5 metres Australian Height Datum

31. Pursuant to cl 6.2 of the GRLEP (Earthworks), the parties agree that the matters listed in cl 6.2(3) have been considered, having regard to the Geotechnical Report prepared by Australian GeoEnviro Pty Ltd dated 5 December 2022, the Infiltration Report prepared by Australian GeoEnviro Pty Ltd dated 11 January 2023, and agreed conditions of consent.

32. Pursuant to cl 6.9 of the GRLEP (Essential services), the parties agree that all services essential for the development are available or adequate arrangements have been made to make them available when required.

Remaining matters in s 4.15(1) of the EPA Act

33. The parties agree that the matters set out in s 4.15(1)(b), (c), and (e) of the EPA Act have been considered, the Subject Land is suitable for the proposed development, and the Amended Development Application is in the public interest.

Conclusion

34. 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.

35. 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.

36. The Court notes that the respondent, as the relevant consent authority, has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the applicant amending its Development Application No. 2023/0458 to include the following plans and documents:

Tab	Title	Rev	Date
Amended Plans
1.	Architectural Plans, prepared by Jamisa Architects Pty Ltd, comprising:
i. Site Analysis/Detail Survey, Dwg No. DA01	E	February 2025
ii. Site Roof Plan, Dwg No. DA02	E	February 2025
iii. Ground Floor Plan, Dwg No. DA03	E	February 2025
iv. First Floor Plan, Dwg No. DA04	E	February 2025
v. Elevations, Dwg No. DA05	E	February 2025
vi. Sections, Dwg No. DA06	E	February 2025
vii. Driveway Centreline Section, Dwg No. DA06A	E	February 2025
viii. Environmental/Construction Management/Demolition Plan, Dwg No. DA07	E	February 2025
ix. Boundary Adjustment Plan, Dwg No. DA08	E	February 2025
x. Deep Soil Area Calculations, Dwg No. DA09	E	February 2025
xi. Finishes Schedule 01	E	Undated
xii. Finishes Schedule 02	E	Undated
xiii. Finishes Schedule 03	E	Undated
xiv. Finishes Schedule 04	E	Undated
xv. Streetscape Analysis Plan, Dwg No. SAP01	E	February 2025
2.	Summary of Amendments to Architectural Plans, prepared by Jamisa Architects Pty Ltd	-	14 February 2025
3.	Stormwater Plans, prepared by John Romanous & Associates Consulting Civil & Structural Engineers, comprising:
i. Stormwater Drainage/Sediment Control Details, Dwg No. 2398 – S1/2	F	13 February 2025
ii. Stormwater Drainage/Sediment Control Details, Dwg No. 2398 – S2/2	F	13 February 2025
4.	Landscape Plan, prepared by Zenith Landscape Designs, comprising:
i. Landscape Plan, Dwg No. 22-4771 LO1, Sheet 1 of 1	E	7 February 2025
5.	Survey Plan, prepared by Geographic Solution Surveyors, comprising
i. Site and Boundary Plan, Ref No. 5757, Sheet 1	-	8 November 2024
Other Amended Documents
6.	Council Cost Report, prepared by Duo Tax Quantity Surveyors Pty Ltd	-	12 February 2025
7.	BASIX Certificate No. 1349993M_06, prepared by Jamisa Architects Pty Ltd	-	12 February 2025
8.	Summary of Report and NatHERS Certificate No. RROIJKSM3B-07 (Main Dwelling)	-	10 February 2025
9.	Summary of Report and NatHERS Certificate No. LO25JXP172-02 (Secondary Dwelling)	-	10 February 2025

37. As set out at [10], the above documents were provided to the Court on 14 February 2025.

Orders

38. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA 2023/0458 (as amended) for the demolition of the existing structures on Lot 15 in Deposited Plan 13518 known as 3 Oberon Street, Blakehurst (Lot 15), a boundary adjustment between Lot 14 in Deposited Plan 13518, known as 5 Oberon Street, Blakehurst, and Lot 15, and the construction of a new two storey dwelling together with a detached secondary dwelling, swimming pool, fencing, landscaping and various site works at Lot 15, subject to the conditions set out in Annexure A.

N Targett

Commissioner of the Court

Annexure A

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Decision last updated: 28 February 2025