Mai Viet v Georges River Council

[2025] NSWLEC 1519

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mai Viet v Georges River Council [2025] NSWLEC 1519

Hearing dates:

Conciliation Conference on 8-9 July 2025

Date of orders:

22 July 2025

Decision date:

22 July 2025

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 2023/0580, for demolition, excavation, construction of a dwelling house over three levels, swimming pool, boat shed, inclinator, landscaping and site works at 52 Annette Street, Oatley NSW 2223, is determined by grant of consent, subject to the conditions of consent set out in 'Annexure A'.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

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

Georges River Local Environmental Plan 2021, cll 1.3, 2.7, 4.3, 4.4, 6.1, 6,3, 6.4, 6.5, 6.6, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2, Div 2, Sch 6

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

Leanne Trina Mai Viet (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2025/94765

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 2023/0580 (DA) for demolition, excavation, construction of a dwelling house over three levels, swimming pool, boat shed, inclinator, landscaping and site works at 52 Annette Street, Oatley NSW 2223.

2. The subject site is legally described as Lot 2 in DP 205809.

3. The site extends from Annette Street to the foreshore of Oatley Bay. There is an existing detached single storey brick dwelling with a pitched tile roof located to the east of a double carport structure, set high on the site, both of which are proposed to be demolished as part of the new development.

4. There is a significant fall from the level of the existing dwelling on the subject site to the foreshore below, with a series of flights of stairs located beside exposed rock outcrops.

5. The DA was lodged with Georges River Council on 20 February 2024, and notified between 14 March 2024 and 8 April 2024, in response to which nine public submissions were received, raising concerns including inaccurate information in the plans, privacy, loss of solar access, view loss, potential damage to adjoining properties during construction, height, scale, bulk and setbacks.

6. The DA was determined by refusal on 10 December 2024.

7. The Applicant in these proceedings filed an appeal in Class 1 of the Court’s jurisdiction on 10 March 2025.

8. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 8 - 9 July 2025. I presided over the conciliation conference, commencing with an onsite view, at which the Court, in the company of legal representatives, the applicants and experts, heard oral submissions from residents. Following the conciliation conference, on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

9. A signed agreement was submitted to the Court on 9 July 2025, in accordance with s 34(10) of the LEC Act.

10. Generally, the agreement approves the development subject to amended plans and supporting documents that were prepared by the Applicant, along with the agreed conditions of consent annexed to the s 34 agreement.

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 one that the Court could have made in the proper exercise of its functions.

12. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the Development Application.

13. I formed an opinion of satisfaction, based on the evidence and the submissions of the parties, that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

Jurisdictional matters

Owner’s consent

14. The Development Application was made with the consent of the owner of the site in compliance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

Planning Framework

Georges River Local Environmental Plan 2021

15. Georges River Local Environmental Plan 2021 (GRLEP) applies to the Site, which is within the Georges River Local Government Area (GRLEP cl 1.3).

16. The site is located within the R2 Low Density Residential zone, pursuant to GRLEP 2021. ‘Dwelling houses’ are permissible with consent in the R2 Low Density Residential zone. The proposal is consistent with the relevant objectives of the zone, which are:

• 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.

17. The parties agree, and I am satisfied, that the development seeks consent for demolition in accordance with cl 2.7 of GRLEP.

18. The proposal is within the height standard at cl 4.3 of GRLEP. The maximum building height is 9 m; the parties agree, and I am satisfied that the proposed development does not exceed 9 m in height (indicated on architectural plan 07 issue D, Innovate Architects, dated 8 July 2025).

19. The proposal is within the floor space ratio (FSR) at cl 4.4 of GRLEP. The site has a maximum FSR of 0.316:1, permitting a total floor area of 603.5 m². The proposed development has an FSR of 0.31:1 with a total floor area of 596.46 m² (indicated on architectural plan 02 issue D, Innovate Architects, dated 8 July 2025).

20. The site is identified as being in an area of Class 5 Acid Sulfate Soils (ASS) on the relevant map at cl 6.1 of GRLEP. I accept the advice of the parties, supported by the Statement of Environmental Effects (The Planning Co.dated 29 November 2024), and the Geotechnical Report (Australian GeoEnviro Pty Ltd; 23 November 2024) that, as the proposed works not likely to lower the water table below 1m, an Acid Sulfate Soils management plan is not required.

21. Clause 6.3 (Stormwater Management) of GRLEP applies to the site. The parties agree, and I am satisfied that the stormwater engineering plans (Hyten Engineering dated 15 November 2024) confirm the development has been designed to maximise the use of water permeable surfaces on the land, and the adverse impacts of stormwater runoff is minimised and meets the objectives of cl 6.3 (2).

22. Clause 6.4 (Foreshore Area and Coastal Hazards and Risk) of GRLEP applies to the site, as part of the site is identified on the Coastal Hazard and Risk Map and the Foreshore Building Line Map. The parties agree and I am satisfied that the matters set out in cl 6.4(4) have been considered, and that the proposed development will not cause environmental harm by pollution or siltation of the waterway, and provides appropriate measures (including by conditions) to avoid, minimise or mitigate the impacts of the proposed development.

23. Clause 6.5 (Riparian Land and Waterways) of the GRLEP applies to the site, as part of the site is identified on the Riparian Land and Waterways Map. The parties agree and I am satisfied that consideration has been given to the matters set out in cl 6.5 (3) of the GRLEP. The proposed development is unlikely to have an adverse impact on water quality and flows within the waterway, is unlikely to increase water extraction from the waterway, and will not cause environmental harm by pollution or siltation of the waterway, as the proposed development will reduce the amount of stormwater run-off from the site and will improve the quality through the utilisation of sediment and erosion control measures. 

24. Clause 6.6 (Foreshore Scenic Protection Area) of the GRLEP applies to the site as the site is identified on the Foreshore Scenic Protection Area Map. The parties agree, and I am satisfied, that the development would facilitate the matters set out in cl 6.6 (3) including to protect the natural environment and minimise impact on the views and visual environment.

25. I am satisfied that the services essential for the development, as set out in cl 6.9 (Essential Services) of the GRLEP, are available or that adequate arrangements have been made to make the available when required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

26. Pursuant to Ch 2 (Vegetation in non-rural areas) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), the parties agree and I am satisfied that the development will not result in the clearing of any vegetation except that authorised by the consent, and that the development does not involve the removal of any significant or protected vegetation on the site.

27. Pursuant to Ch 6 (Water Catchments) of the Biodiversity SEPP the site is located within the Georges River Catchment, which is a ‘regulated catchment’ as defined in Sch 6. I have considered the jurisdictional requirements in Div 2 of Pt 6.2 of the Biodiversity SEPP and having regard to the nature and details of the proposed development and the proposed conditions of consent (including specifically conditions 20, 21, and 73 relating to erosion and sediment control, stormwater system, and stormwater drainage and driveway works respectively) I am satisfied that the development meets these requirements including those regarding water quality and quantity, aquatic ecology, flooding, recreation and public assess, and total catchment management.

State Environmental Planning Policy (Resilience and Hazards) 2021

28. Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies as the site is mapped as being within the ‘Coastal Use Area’ and the ‘Coastal Environment Area’.

29. The matters in ss 2.10(1) and 2.11(1)(a) of the Resilience and Hazards SEPP have been considered, and the parties agree and I am satisfied that by virtue of its design, siting, scale, nature and conditions of consent, the proposed development is unlikely to cause an adverse impact on any of the listed matters.

30. On the basis that the site has been used for residential purposes for a substantial period of time, with no known records of contaminating activity being conducted on the site, I accept that the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (SustainableBuildings) 2022

31. The proposed development is BASIX development as defined in s 27 of the EPA Regulation. The development application was accompanied by a BASIX certificate (certificate number 1425393S_02 issued on 27 September 2023); a new BASIX certificate for the amended development was issued on 8 July 2025 (certificate no. 1425393S_03).

32. On the basis that an embodied energy report forms part of the BASIX certificate, I am satisfied that the embodied emissions attributable to the development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

33. I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

34. I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

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:

1. The Respondent, Georges River Council, as the relevant consent authority, approves pursuant to s 38(1) of the EPA Regulation the Applicant amending Development Application No. 2023/0580 in accordance with the documents listed below:

1.	Architectural Plans prepared by Innovate Architects
	i. Site Plan & Boatshed Plan, dwg no. 02	D	8 July 2025
	ii. Lower Ground Floor Plan, dwg no. 03	D	8 July 2025
	iii. Ground Floor Plan, dwg no. 04	D	8 July 2025
	iv. Driveway Plan, Front Fence Elevation and Section, dwg no. 05	D	8 July 2025
	v. First Floor Plan, dwg no. 06	D	8 July 2025
	vi. Elevations & External Finishes Schedule, dwg no. 07	D	8 July 2025
	vii. Sections & Height Blanket, dwg no. 08	D	8 July 2025
	viii. Shadow Diagrams – Principal Private Open Space, dwg no. 09A	D	8 July 2025
	ix. Shadow Diagrams – Winter Solstice June 21, dwg no. 09B	D	8 July 2025
	x. Shadow Diagrams – Winter Solstice June 21, dwg no. 09C	D	8 July 2025
	xi. Solar Eye Diagrams – June 21, dwg no. 09D	D	8 July 2025
	xii. Calculations, dwg no. 10	D	8 July 2025
	xiii. Excavation Plans, dwg no. 11	D	8 July 2025
	xiv. Cut & Fill Plan, dwg no. 12	D	8 July 2025
	xv. Schedule of Materials, dwg no. 13	D	8 July 2025
2.	BASIX Certificate No. 1425393S_03	-	8 July 2025

Orders

37. The Court orders that:

1. The appeal is upheld.

2. Development Application No. 2023/0580, as amended, for demolition, excavation, construction of a dwelling house over three levels, swimming pool, boat shed, inclinator, landscaping and site works at 52 Annette Street, Oatley NSW 2223, is determined by grant of consent, subject to the conditions of consent set out in 'Annexure A'.

N Macken

Acting Commissioner of the Court

94765.25 Macken AC (Annexure A) (297 KB, pdf)

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Amendments

23 July 2025 - Case name updated, and Annexure A reuploaded with correct case name.

Decision last updated: 23 July 2025