Janevski v Georges River Council

[2024] NSWLEC 1361

Land and Environment Court

New South Wales

Medium Neutral Citation:

Janevski v Georges River Council [2024] NSWLEC 1361

Hearing dates:

Conciliation Conference 24 June 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to Development Application No DA2022/0186, as amended, for the demolition and construction of two two-storey attached dwellings, landscaping and site works, on land identified as Lots 132 and 133 Section 4 in DP 3181, known as 12 Broughton Street, Mortdale NSW 2223, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021 ss 27, 38

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, 11

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

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

State Environmental Planning Policy (Water Catchments) 2022

Texts Cited:

Georges River Development Control Plan 2021

Category:

Principal judgment

Parties:

Van Janevski (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
D Loether (Solicitor)(Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
Bartier Perry (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/463812

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2022/0186 for demolition and construction of two two-storey attached dwellings, landscaping, and site works (the Proposed Development) at 12 Broughton Street, Mortdale legally described as Lots 132 and 133, Section 4 in DP 3181 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 24 June 2024. I have presided over the conciliation conference.

3. The parties relied on the Joint Expert Report of Town Planning Experts (JER Planning) filed 18 June 2024 prepared by Bernard Moroz for the Applicant and Simon Smith for the Respondent.

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 and granting development consent to the development application subject to conditions.

5. The Statement of Facts and Contentions filed by the Respondent on 7 February 2024 (SOFAC) raised a number of merit contentions including bulk and scale, vehicular access and landscaping, and earthworks, with respect to the original proposal. The parties agree that the Proposed Development, as amended, resolves the Respondent’s merit issues, this includes resolution of all issues arising from the Georges River Development Control Plan 2021 (GRDCP) and addressing the concerns raised by objectors in the two written submissions made pursuant to s 4.15(1)(d) of the EPA Act and in oral submissions on site. Those issues are addressed by the following changes:

1. Vehicular access via two separate driveways rather than one centralised driveway, and garage entry and front entry recessed to setbacks of 6m and 5.46m respectively, minimising the bulk and scale of the proposal;

2. Removal of proposed courtyards to side boundaries, window reconfiguration and the inclusion of condition of consent 11(e) requiring the final total combined height of fence and retaining wall of 1.8m as measured from the neighbouring property;

3. Design changes including glazing to front doors, new awnings, glass balustrades, planter boxes, and vertically proportioned battens to street elevation, amending void ratios and contributing to the visual interest from the public street view; and

4. Amended materiality to incorporate neutral tones including brown face brick, grey panelled garage doors and white cement render; (see Joint Town Planning Expert Report, filed 18 June 2024, section 2.2, pages 6 and 7).

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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. 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 in an agreed jurisdictional statement.

9. The Site is zoned R2 Low Density Residential pursuant to the Georges River Local Environmental Plan 2021 (GRLEP) and development for the purposes of semi-detached dwellings is permissible with consent in the R2 zone.

10. The Proposed Development seeks consent to demolish the existing dwelling on the Site as part of the application, pursuant to cl 2.7 of the GRLEP.

11. The Site is subject to a maximum height of building development standard of 9m pursuant to cl 4.3 of the GRLEP. The Proposed Development complies with this development standard as evidenced in Architectural Plans prepared by DA House, Drawing Nos P-2112-A05 and P-2112-A06, Issue C dated 29 May 2024 showing a compliant maximum building height of 7.4m.

12. Clause 4.4A of the GRLEP prescribes a maximum Floor Space Ratio (FSR) development standard of 0.55:1 being a maximum gross floor area (GFA) of 122.8m² for Lot 133 and 122.78m² for Lot 132. The allotments presently exist, and the application is not seeking any boundary adjustment. Lot 133 has an area as referenced in the Deposited Plan of 223.29m² and Lot 132 of 223.23m². Lot 133 is referred to as Dwelling 1 or DW1 in the architectural drawings whereas Lot 132 is referred to as Dwelling 2 or DW2 in the architectural drawings.

13. The Proposed Development complies with the FSR development standard because the FSR for Lot 132 is 0.55:1 and the FSR for Lot 133 is 0.549:1, although it is noted that the Architectural Plans prepared by DA House, Drawing Nos P-2112-A01, P-2112-A21 and P-2112-A22, Issue C dated 29 May 2024 depict compliant FSR for each lot at 0.55:1 notwithstanding the minor difference between the dimensions of the side boundaries of each lot clearly depicted in these drawings and in accordance with the Survey filed with the Class 1 Application at Tab 11. In any event, I am satisfied that there is no contravention of the FSR development standard.

14. The Site is not land shown on the Acid Sulfate Soils Map and is not affected by acid sulfate soils pursuant to cl 6.1 of the GRLEP.

15. A minimum of 20% of site area as landscaping is required pursuant to cl 6.12(5)(a) of the GRLEP which results in at least 44.65m² of each Lot being required as landscaped area. The Landscape Plan P-2112-A14 dated 29 May 2024 depicts that the Proposed Development provides a landscaped area on each lot of approximately 30% of the site area for each Lot 133 and Lot 132 demonstrating compliance with cl 6.12(5)(a) of the GRLEP.

16. As set out in the SOFAC at par 4.6 the consent authority must consider, prior to granting consent, whether the land is contaminated pursuant to Chapter 4 Remediation of Land, specifically s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Site has been used for residential development and there is no evidence that any use listed in Table 1 of the contaminated land planning guidelines has occurred on the Site. Accordingly, it is considered that there is no evidence that the Site is contaminated.

17. The proposed development is BASIX affected development pursuant to s 27(1)(a) of the Environmental Planning and Assessment Regulation 2021. The Applicant provides a BASIX Certificate for each of the proposed dwellings, which show that the Proposed Development achieves the minimum performance levels/targets associated with water, energy and thermal efficiency. The parties are satisfied that the proposal addresses the requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

18. The Proposed Development is supported by an Arboricultural Assessment, prepared by Jacksons Nature Works, dated 31 May 2024, which provides that the Proposed Development, including the proposed second driveway excavation, will not impact on the tree located in Council’s nature strip (State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 - Vegetation in non-rural areas)

19. State Environmental Planning Policy (Water Catchments) 2022 commenced on 21 November 2022, amending the State Environmental Planning Policy (Biodiversity and Conservation) 2021 by omitting Chs 7-12 and inserting Ch 6 – Water catchments. However, this contained a savings and transitional provision, and as the Application was lodged prior to 21 November 2022, the provisions of Chapter 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 still apply. In relation to the terms of Ch 11, the Proposed Development has proposed acceptable stormwater control and discharge.

20. 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. I adopt the reasons given by the parties as set out above in this judgment.

21. 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.

Notations:

22. The Court notes that:

1. Georges River Council, as the relevant consent authority, has approved the amendment of the development application under s 38(1) of the Environmental Planning and Assessment Regulation 2021, for Development Application No DA2022/0186 to be amended by the substitution of the following amended plans and documents (Amended Plans):

1. The following amended architectural plans prepared by DA House:

Drawing Title	Sheet No.	Revision	Dated
Site Plan	P-2112-A01	C	29/05/2024
Ground Floor Plan	P-2112-A02	C	29/05/2024
1st Floor Plan	P-2112-A03	C	29/05/2024
Roof Plan	P-2112-A04	C	29/05/2024
Elevations	P-2112-A05	C	29/05/2024
Elevations	P-2112-A06	C	29/05/2024
Section	P-2112-A07	C	29/05/2024
Section	P-2112-A07A	C	29/05/2024
Driveway Section – DW1	P-2112-A08	C	29/05/2024
Driveway Section – DW2	P-2112-A09	C	29/05/2024
Shadows - June	P-2112-A10	C	29/05/2024
Shadows - December	P-2112-A11	C	29/05/2024
Site Analysis Plan	P-2112-A12	C	29/05/2024
Sediment Plan	P-2112-A13	C	29/05/2024
Landscape Plan	P-2112-A14	C	29/05/2024
Turning Paths	P-2112-A20	C	29/05/2024
Ground Floor Plan	P-2112-A21	C	29/05/2024
1st Floor Plan	P-2112-A22	C	29/05/2024
Schedule of Colours + Finishes	Sheet A-30	C	29/05/2024

2. The following amended stormwater plans prepared by LMW Design Group:

Drawing Title	Sheet No.	Revision	Dated
Site and ground floor stormwater drainage concept plan	D1	E	20/06/2024
OSD and absorption trench calculations and section details	D1(A)	D	20/06/2024
Roof and first floor stormwater drainage concept plan	D2	C	20/06/2024

3. Arboricultural Impact Assessment Report prepared by Jacksons Nature Works dated 31 May 2024; and

4. BASIX Certificate 1265605S_03 and 1265617S_03 dated 6 June 2024.

Orders:

23. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA2022/0186, as amended, for the demolition and construction of two two-storey attached dwellings, landscaping and site works, on land identified as Lots 132 and 133 Section 4 in DP 3181, known as 12 Broughton Street, Mortdale NSW 2223, subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 28 June 2024