Kotsis v Georges River Council

[2024] NSWLEC 1669

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kotsis v Georges River Council [2024] NSWLEC 1669

Hearing dates:

Conciliation Conference held on 10 and 11 October 2024

Date of orders:

23 October 2024

Decision date:

23 October 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA2023/0439, as amended, for the demolition of existing structures, excavation, tree removal and construction of a detached dual occupancy and swimming pools for each dwelling at 79 Queens Road, Connells Point NSW 2221, being lot 1 in Deposited Plan 605691, subject to the conditions in the annexure marked "A”.

Catchwords:

DEVELOPMENT APPEAL – residential development – waterfront – design excellence – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Georges River Local Environmental Plan 2021, cll 2.7, 4.1B, 4.3, 4.4A, 6.1, 6.3, 6.4, 6.5, 6.6, 6.10, 6.12

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38

Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 2.12, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.9, 6.10

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

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

Texts Cited:

Georges River Council, Community Engagement Strategy 2023-2033

Category:

Principal judgment

Parties:

Chris Kotsis (First Applicant)
Tony Nehme (Second Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
B Jackson (Applicants)
M Staunton (Respondent)

Solicitors:
Fortis Law (Applicants)
Georges River Council (Respondent)

File Number(s):

2024/133536

Publication restriction:

Nil

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 DA2023/0439 (Application), which seeks development consent for demolition works, construction of a detached dual occupancy and swimming pools for each dwelling (the Proposed Development) at 79 Queens Road, Connells Point legally described as Lot 1 in DP 605691 (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 10 and 11 October 2024. I presided over the conciliation conference.

3. The Application was notified between 9 November 2023 and 23 November 2023 in accordance with Council’s Community Engagement Strategy 2023-2033. Four submissions were received during the notification period. The proceedings commenced on site and the Court heard from a number of objectors who had been provided with a copy of the without prejudice plans (the Amended plans) referred to in the Joint Expert Reports filed with the Court. The Amended plans and the Final Amendment do not require further re-notification because, in accordance with Council’s Community Engagement Strategy 2023-2033, the relevant officer of the Council has formed the opinion that the amendments are not considered to result in significant additional environmental impacts and Council’s experts in the proceedings consider that the amendments adequately address Council’s concerns and can be approved.

4. The parties’ experts agree that all contentions raised in the Statement of Facts and Contentions filed 13 May 2024 (SOFAC) have been resolved by the preparation of the:

1. Amended plans and documents referred to in the Notations; and

2. Agreed conditions of consent at Annexure A.

5. 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.

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 to be provisions of the Georges River Local Environmental Plan 2021 (GRLEP) and a number of State Environmental Planning Policies which all apply to the Site because of its location on the foreshore of the Georges River Catchment. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

9. Owner’s consent to lodge the Application is provided pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The Application was lodged by Metropoint Group Pty Ltd on 26 September 2023 with the Respondent. The Applicants engaged Metropoint Group Pty Ltd to lodge the Application on their behalf as, at the time, the purchasers under a contract for sale of the land in relation to the Site. The owner of the Site at the time of lodgement of the Application signed owner’s consent which is behind Tab 12 of the Class 1 Application filed with the Court. The Applicants are the current owners of the Site.

10. The Proposed Development is a ‘BASIX development’ under the EPA Regulation. A BASIX certificate, as required under s 27(1)(a) of the EPA Regulation, has been provided, reference 1768256M, dated 11 October 2024, prepared by AENEC, which satisfies the minimum requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

11. Pursuant to s 2.48(2)(a) of the State Environmental Planning Policy (Transport and Infrastructure) 2021, the Application was referred to Ausgrid. On 3 November 2023, Ausgrid provided a response finding the Application to be satisfactory subject to the imposition of conditions. I also note that Sydney Water provided a response to the notification on 7 December 2023 raising no objection subjection to conditions. A copy of both responses was provided to the Court with the Respondent’s Bundle of Documents filed on 3 October 2024 at Tab 8.

12. As the Site is located with the Georges River Catchment, a number of provisions within Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), which aims to protect the environment of the Georges River water systems, are required to be satisfied, in particular, ss 6.6 and 6.9, including whether the Proposed Development will:

1. have a neutral or beneficial effect on the quality of water entering a waterway, and

2. increase the amount of stormwater run-off from the Site.

13. I am satisfied as to both of these jurisdictional prerequisites because there are environmental safeguards proposed, including detailed drainage concepts, erosion and sediment controls and the design includes rainwater tanks and re-use for landscape, toilet, laundry and pool top up.

14. As the development is not likely to have an adverse impact on land in any adjacent or downstream local government areas, the Council is not required to consult with other Councils in accordance with s 6.10 of the Biodiversity and Conservation SEPP.

15. The Site is mapped within a Coastal Environmental Area, a Coastal Use Area, and a Coastal Zone under Ch 2 Coastal Management of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). Development consent must not be granted to development on land that is within the Coastal Environment Area pursuant to s 2.10 of the Resilience and Hazards SEPP unless the consent authority is satisfied that the development is designed, sited and will be managed to avoid an adverse impact on the following:

(a)    the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b)    coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d)    marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e)    existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f)    Aboriginal cultural heritage, practices and places,

(g)    the use of the surf zone.

16. Section 2.11(1) of the Resilience and Hazards SEPP also provides that development consent must not be granted to development on land that is within the Coastal Use Area unless the consent authority:

(a)    has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)    existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)    overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)    the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)    Aboriginal cultural heritage, practices and places,

(v)    cultural and built environment heritage, and

(b)    is satisfied that—

(i)    the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii)    if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii)    if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c)    has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

17. An extract from Aboriginal Heritage Information Management System (AHIMS), confirms that there are nil Aboriginal sites record in or near the Site and nil Aboriginal places have been declared in or near the Site.

18. In addition to the applicability of this AHIMS extract for the purpose of ss 2.10 and 2.11 of the Resilience and Hazards SEPP, it is also applicable to satisfy cl 6.5 of the GRLEP.

19. Section 2.12 of the Resilience and Hazards SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the Proposed Development is not likely to cause increased risk of coastal hazards on that land or other land.

20. The Proposed Development is supported by the revised architectural, landscape and engineering plans as well as the Statement of Environmental Effects which demonstrate that the Proposed Development and its associated works are sited and scaled to be clear of the nearby waterway so as to avoid any adverse impacts on the coastal environment and coastal use areas. The Respondent has assessed the Proposed Development against the matters outlined in ss 2.10(1) and 2.11(1)(a) of the Resilience and Hazards SEPP, and, is satisfied that the Proposed Development fulfils the requirements in ss 2.10(2), 2,11(1)(b) and 2.12 of the Resilience and Hazards SEPP. I have reviewed the documents filed with the Court including the Stormwater Plans ER001, SW002 and SW010 together with the BASIX certificate at p 7 and have formed the same state of satisfaction.

21. Pursuant to s 4.6 of the Resilience and Hazards SEPP, a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the land is suitable, or will be after undergoing remediation, for the proposed use. The SOFAC filed 13 May 2024 provides that the Site has an historical residential use and is located within an established residential locality. Based on historical records, there is no suggestion that the Site would have been contaminated. I am satisfied that the Site is suitable for the proposed residential use.

22. Compliance with the GRLEP is addressed generally in the Statement of Environmental Effects prepared by Maximus Developments Australia, dated 24 July 2023 and filed with the Class 1 Application at Tab 4. I have also had regard to the Respondent’s Assessment Report at Tab 10 of the Respondent’s Bundle.

23. The Site is zoned R2 Low Density Residential under the GRLEP where the Proposed Development, construction of “dual occupancies”, is permissible with consent. Consent is sought for the demolition of existing dwellings as required under cl 2.7 of the GRLEP.

24. The Site is located within the Foreshore Scenic Protection Area. Pursuant to cl 4.1B(3) of the GRLEP regarding Minimum Lot Size, development consent must not be granted for the erection of a dual occupancy unless the Site has an area of at least 1,000 square metres. The Application complies with cl 4.1B(3) with a Site area of 1,585.3m² as depicted in drawing DA04.

25. The Proposed Development complies with cll 4.1B(2) and 4.1B(5) of the GRLEP as the Site has a lot width at the front building line that is greater than 22m.

26. There is a prescribed 9 metres (m) maximum height of building development standard pursuant to cl 4.3 of the GRLEP. The Proposed Development has provided a compliant maximum height being confirmed by the 9M Height Plane Diagram drawing DA44.

27. A maximum floor space ratio (FSR) development standard of 0.48:1 applies to the Site pursuant to cl 4.4A of the GRLEP. The Proposed Development has an FSR of 0.48:1 and therefore complies with the FSR development standard as depicted in drawing DA45.

28. The Site is affected by Acid Sulfate Soils under cl 6.1 of the GRLEP, being Class 5. However, the Proposal Development does not seek excavation below 5m Australian Height Datum.

29. In satisfaction of cl 6.3 of the GRLEP regarding stormwater management, the Proposed Development is supported by Stormwater Management Plans prepared by Capital Engineering Consultants, which depict the stormwater management systems, including erosion and sediment control measures to minimise the impact of stormwater drainage on public systems and avoid adverse impacts of stormwater runoffs on adjoining properties. The BASIX commitments also require a 2500L rainwater tank for each dwelling with re-use for laundry and pool top up.

30. Development within the Foreshore Building Line is prohibited, with exceptions, cl 6.4(3) of the GRLEP. The Proposed Development complies with the exceptions at cl 6.4(3)(a) to (c), namely that the development proposed within the Foreshore Building Line is for the demolition and rebuilding of access stairs, which will not extent further forward than the existing footprint (cl 6.4(3)(a)) and a walking track (cl 6.4(3)(c)).

31. In satisfaction of cl 6.5 regarding riparian land and waterways, notwithstanding the removal of trees, the Proposed Development will incorporate the reestablishment of tress within in its high-quality landscape works. The Proposed Development is supported by an arborist report (Tab 8 Class 1 Bundle) and an updated Tree Schedule which was annexed to the Joint Expert Report prepared by the Arborists and dated 13 September 2024. In addition, a condition of consent proposes the implementation of a vegetation management plan in the foreshore area.

32. The Site is located within the Foreshore Scenic Protection Area Map under cl 6.6(2) of the GRLEP. The Proposed Development complies with the objectives of cl 6.6(1) of the GRLEP and facilitates the protection of the natural environment as described in this judgment.

33. The Proposed Development complies with the requirement for design excellence under cl 6.10 of the GRLEP as it provides high quality architectural design, material and detailing as depicted in drawing DA61. The Final Amendment before the Court addresses the concerns raised by Council’s expert set out in the Joint Expert Report prepared by the Urban Designers and dated 25 September 2024. Namely, the Proposed Development now:

1. no longer proposes a symmetrical façade treatment for both the dwellings, it is proposed each façade will have their own distinct treatment;

2. has reduced the glazing and reflective glare on the foreshore façade, including by the inclusion of louvres on the façade;

3. there will be sufficient vegetation, tree planting and tree retention to maintain the foreshore’s character area, amenity and quality. The conditions of consent include the requirement for the applicants to prepare and comply with a vegetation management plan.

4. the proposed excavation of the Site is limited, but is necessary to assist in reduction of the overall bulk and scale of the built form.

34. Finally, in compliance with cl 6.12(5)(d) of the GRLEP the Proposed Development has a total landscaped area of 540.0m², which is more than the required 30% if the site area as depicted in drawing DA04.

35. 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.

36. 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:

37. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicants amending Development Application No. DA2023/0439 in accordance with the following amended plans (Amended Development Application) which were filed with the Court on 11 October 2024:

No	Document		Ref No.		Prepared by	Rev	Date
1.	Architectural Plans
	Cover Page & Drawing List		DA00		Metropoint Group Architects (“MGA”)	F	11 Oct 2024
	Site Context Plan		DA01		MGA	C	09 Oct 2024
	Existing Site Plan – Full Site		DA02		MGA	C	09 Oct 2024
	Demolition Plan – Full Site		DA03		MGA	C	09 Oct 2024
	Site Analysis Plan		DA04		MGA	C	09 Oct 2024
	Setbacks Plan		DA05		MGA	C	09 Oct 2024
	Axonometric View of Occupancy Location		DA06		MGA	D	11 Oct 2024
	Ground Floor		DA11		MGA	E	11 Oct 2024
	Level 1		DA12		MGA	E	11 Oct 2024
	Level 2		DA13		MGA	E	11 Oct 2024
	Level 3		DA14		MGA	D	09 Oct 2024
	Roof		DA15		MGA	C	09 Oct 2024
	Elevation – North		DA21		MGA	D	11 Oct 2024
	Elevation – East		DA22		MGA	D	11 Oct 2024
	Elevation – West		DA23		MGA	D	11 Oct 2024
	Elevation – South		DA24		MGA	C	09 Oct 2024
	Section A		DA31		MGA	D	11 Oct 2024
	Section B		DA32		MGA	D	11 Oct 2024
	Driveway Section and Swept Path		DA33		MGA	D	09 Oct 2024
	Landscape Coverage Plan		DA41		MGA	C	09 Oct 2024
	Site Environmental Management Plan		DA42		MGA	C	09 Oct 2024
	Excavation Diagrams_1		DA43		MGA	F	11 Oct 2024
	Excavation Diagrams_2		DA43 A		MGA	C	10 Oct 2024
	9M Height Plane		DA44		MGA	D	11 Oct 2024
	GFA Calculations		DA45		MGA	E	11 Oct 2024
	Shadow Diagrams_Existing		DA51		MGA	C	09 Oct 2024
	Shadow Diagrams_Proposal		DA52		MGA	D	11 Oct 2024
	Schedule of Materials		DA61		MGA	D	10 Oct 2024
	Waterscape Character Analysis		DA62		MGA	C	09 Oct 2024
	Notification Plans		DA71		MGA	D	11 Oct 2024
2.	Landscape Plans
	Landscape Concept		L-01		Outside In Design Group (“OIDG”)	D	10 Oct 2024
	Plant Schedule		L-02		OIDG	D	10 Oct 2024
	Northern Section		L-03		OIDG	D	10 Oct 2024
	Northern Section		L-04		OIDG	D	10 Oct 2024
3.	Stormwater Plans
	Cover Sheet		SW001		Capital Engineering Consultants (“CEC”)	A	08 Oct 2024
	Notes & Details Section		SW002		CEC	A	08 Oct 2024
	Ground Floor, Notes & Details		SW010		CEC	A	08 Oct 2024
	First Floor, Notes & Details		SW011		CEC	A	08 Oct 2024
	Second Floor, Notes & Details		SW012		CEC	A	08 Oct 2024
	Third Floor, Notes & Details		SW013		CEC	A	08 Oct 2024
	Erosion & Sediment Control Plan, Notes & Details		ER001		CEC	A	08 Oct 2024
4.	Traffic Response Letter				Stronghold Engineers	SH23247	09 Oct 2024
	Swept Path Analysis
	Swept Path Analysis			T01	Stronghold Engineers	B	08 Oct 2024
	Swept Path Analysis			T02	Stronghold Engineers	B	08 Oct 2024
	Swept Path Analysis			T03	Stronghold Engineers	B	08 Oct 2024
	Swept Path Analysis			T04	Stronghold Engineers	B	08 Oct 2024
5.	Geotechnical Assessment Rock Outcrops Mapping				CEC Geotechnical	GR24216-1A	09 Oct 2024
6.	Survey Plan
	Boundary Detail & Level Survey	1/3			MA Surveying	2	09 Oct 2024
	Boundary Detail & Level Survey	2/3			MA Surveying	2	09 Oct 2024
	Boundary Detail & Level Survey	3/3			MA Surveying	2	09 Oct 2024
7.	View Loss Images				-	-	16 Sep 2024
	Photomontage Verification Report				Rock Hunter Australia	17 Sep 2024
8.	BASIX
Stamped Plans				Nationwide Housing Energy Scheme	E	11 Oct 2024
BASIX Certificate No. 1768256M				Department of Planning, Housing and Infrastructure	4.03	11 Oct 2024
NatHERS Certificate No #HR-OC40CG-01				Nationwide Housing Energy Scheme	-	11 Oct 2024
NatHERS Certificate No #HR-X59O78-01				Nationwide Housing Energy Scheme	-	11 Oct 2024
NatHERS Certificate No #HR-33O08G-01				Nationwide Housing Energy Scheme	-	11 Oct 2024

Orders:

38. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application DA2023/0439, as amended, for the demolition of existing structures, excavation, tree removal and construction of a detached dual occupancy and swimming pools for each dwelling at 79 Queens Road, Connells Point NSW 2221, being lot 1 in Deposited Plan 605691, subject to the conditions in the annexure marked "A”.

E Espinosa

Commissioner of the Court

Amended Annexure A

**********

Amendments

29 October 2024 - Pursuant to the slip rule UCPR 36.17, condition 37 of Annexure A is amended.

Decision last updated: 29 October 2024