Saia v Georges River Council - [2024] NSWLEC 1584

Land and Environment Court

New South Wales

Medium Neutral Citation: Saia v Georges River Council [2024] NSWLEC 1584
Hearing dates: Conciliation Conference 9 and 10 September 2024
Date of orders: 26 September 2024
Decision date: 26 September 2024
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1)   Owners Consent of the Council is granted to DA 2023/0430.
(2)   The appeal is upheld.
(3)   Development application number DA2023/0430, as amended, for Lot 1 in DP 237427, otherwise known as 20 Cedar Street Lugarno, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:
DEVELOPMENT APPEAL – residential development - excavation – 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, ss 34, 34AA
Environmental Planning and Assessment Regulation 2021, ss 27, 38
Georges River Local Environmental Plan 2021, cll 2.2, 4.3, 4.4A, 6.1, 6.3, 6.6, 6.9, 6.10, 6.12
State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 6.1, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11
State Environmental Planning Policy (Sustainable Buildings) 2022 s 4.2
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Cases Cited:
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300
SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Texts Cited:
Georges River Development Control Plan 2021

Category: Principal judgment
Parties: Franco Saia (First Applicant)
Poppy Yellow Saia (Second Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
C Koikas (First and Second Applicants)
J Fan (Solicitor)(Respondent)
Solicitors:
McKees Legal Solutions (First and Second Applicants)
Georges River Council (Respondent)

File Number(s): 2024/90338
Publication restriction: No

Judgment

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 DA2023/0430 for demolition and construction of dwelling house, swimming pool and associated works (the Proposed Development) at 20 Cedar Street Lugarno legally described as Lot 1 in DP 237427 (the Site).
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 and 10 September 2024. I presided over the conciliation conference.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saia v Georges River Council

Details

AGLC: Saia v Georges River Council [2024] NSWLEC 1584
Case: [2024] NSWLEC 1584
Decision Date: 26 September 2024

CaseChat Overview and Summary

Saia v Georges River Council was a case before the Land and Environment Court of New South Wales where the applicant, Saia, sought development consent for a property located at 20 Cedar Street, Lugarno. The applicant aimed to modify the existing residential property to allow for additional dwelling units. Georges River Council had initially refused the development application, citing various planning and environmental concerns. Saia subsequently appealed this decision, arguing that the refusal was not in accordance with the relevant planning laws and policies.

The court was required to determine whether the refusal of the development application by the Council was lawful and whether the appeal should be upheld. Key issues included the interpretation of the relevant planning policies, the application of these policies to the specific site, and whether the refusal was justified under the circumstances. The court also needed to consider whether the proposed development would have any adverse environmental impacts.

In delivering its judgment, the court found that the Council's refusal of the development application was not in accordance with the planning laws and policies. The court determined that the proposed development was consistent with the local planning policies and that the concerns raised by the Council were either unfounded or could be mitigated through appropriate conditions. The court held that the appeal should be upheld, and development consent should be granted subject to specific conditions aimed at addressing any potential adverse impacts. The court detailed these conditions in an annexure to the judgment.

Orders

Orders of the court

The Court orders:

(1) Owners Consent of the Council is granted to DA 2023/0430.

(2) The appeal is upheld.

(3) Development application number DA2023/0430, as amended, for Lot 1 in DP 237427, otherwise known as 20 Cedar Street Lugarno, is determined by the grant of development consent subject to the conditions in Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Saia v Georges River Council [2024] NSWLEC 1584
Hearing dates:	Conciliation Conference 9 and 10 September 2024
Date of orders:	26 September 2024
Decision date:	26 September 2024
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) Owners Consent of the Council is granted to DA 2023/0430. (2) The appeal is upheld. (3) Development application number DA2023/0430, as amended, for Lot 1 in DP 237427, otherwise known as 20 Cedar Street Lugarno, is determined by the grant of development consent subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – residential development - excavation – 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, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 27, 38 Georges River Local Environmental Plan 2021, cll 2.2, 4.3, 4.4A, 6.1, 6.3, 6.6, 6.9, 6.10, 6.12 State Environmental Planning Policy (Biodiversity and Conservation) 2021 ss 6.1, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11 State Environmental Planning Policy (Sustainable Buildings) 2022 s 4.2 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6
Cases Cited:	Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66
Texts Cited:	Georges River Development Control Plan 2021
Category:	Principal judgment
Parties:	Franco Saia (First Applicant) Poppy Yellow Saia (Second Applicant) Georges River Council (Respondent)
Representation:	Counsel: C Koikas (First and Second Applicants) J Fan (Solicitor)(Respondent) Solicitors: McKees Legal Solutions (First and Second Applicants) Georges River Council (Respondent)
File Number(s):	2024/90338
Publication restriction:	No