Salhab v Georges River Council

[2022] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:

Salhab v Georges River Council [2022] NSWLEC 1194

Hearing dates:

Conciliation Conference on 1 April 2022

Date of orders:

19 April 2022

Decision date:

19 April 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA2020/0192 lodged with the Respondent on 7 May 2020 and subsequently amended as filed with the Court on 30 March 2022, seeking consent for the demolition of existing dwelling and structures, and the construction of a two-storey attached dual occupancy with swimming pools on Lot 8 DP 236988, known as 68 Morshead Drive, Connells Point, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition – construction of new two storey attached dual occupancy – amended plans – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Georges River Local Environmental Plan 2021, cl 1.8A

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, Pt 2, cl 7

Kogarah Local Environmental Plan 2012, cll 2.3, 2.7, 4.1B, 4.3

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

State Environmental Planning Policy Amendment (Miscellaneous) 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Coastal Management) 2018, cll 5, 13, 14, 16

State Environmental Planning Policy (Infrastructure) 2007, cl 45

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, Pt 2, cl 7

Category:

Principal judgment

Parties:

Buddy Salhab (Applicant)
Georges River Council (Respondent)

Representation:

Solicitors:
V Conomos(Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Counsel:
Conomos Legal (Applicant)
HWL Ebswoth Lawyers (Respondent)

File Number(s):

2021/319419

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the refusal of Development Application No DA2020/0192 by Georges River Council (the Respondent). The development application seeks consent for the demolition of the existing dwelling and structures and construction of a two-storey attached dual occupancy development and swimming pool. The development is proposed at 68 Morshead Drive, Connells Point (Lot 8 in DP 236988).

2. The proceedings commenced with a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). No member of the public sought to be heard in relation to the matter. Prior to the conciliation the Applicant amended their development application with the consent of the Respondent and uploaded the amended development application to the NSW Planning Portal on 31 March 2022. The principal amendments to the development application comprise:

• Driveways amended to a single driveway.

• Basement redesigned to accommodate the tree protection zone (TPZ) for Tree 11.

• Internal stairs from basement to dwellings removed.

• Building 1 amended to delete study and amend the living area to accommodate TPZ for Tree 11.

• Lift entries reconfigured

• Northern and southern external laundry doors and stairs removed.

• Pool coping levels lowered to FFL.RL. 26.00 and setback 500mm from boundaries with adjoining properties.

• Upper Roof Parapet levels have been lowered to RL. 30.962.

• Lower Roof parapet level has been lowered to RL. 29.815.

3. Agreement was reached between the parties at the conciliation conference. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment: pursuant to s 4.16(1) of the EPA Act.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

5. 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 have formed this state of satisfaction for the following reasons:

1. The owners of the site have both provided their consent to the lodgement of the development application.

2. The development application was notified to adjoining and proximate properties for a period of seven days. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

3. The development application is accompanied by a multi-dwelling BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The parties confirm that a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. The development application does not propose a change of use. I accept that the site will be suitable for the proposed development.

5. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy (Coastal Management) 2018 to the new instrument. A small portion of the western frontage of the site to Morshead Drive as it is mapped within the Coastal Zone for the purposes of cl 2.12 and 2.13 of SEPP Resilience and Hazards. Accordingly, in determining the development application I am satisfied that the proposed development is not likely to increase risk of coastal hazards.

6. The Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment was repealed by State Environmental Planning Policy Amendment (Miscellaneous) 2021. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) incorporates the transferred provisions at Chapter 11. Pursuant to 11.5 of SEPP Biodiversity and Conservation, the consent authority is required to consider the planning principles at 11.6 and 11.7 in determining the development application. In determining the development application, I have given consideration to these principles.

7. Satisfying cl 45(2) of State Environmental Planning Policy (Infrastructure) 2007, as it was, the development application was referred to Ausgrid who confirm they have no objection to the development.

8. Georges River Local Environmental Plan 2021 (LEP 2021) commenced on 8 October 2021, however pursuant to cl 1.8A of LEP 2021, Kogarah Local Environmental Plan 2012 (LEP 2012) continues to apply as the matter is not finally determined prior to the commencement of LEP 2021. The site is zoned R2 – Low Density Residential dual occupancies are permitted with consent. Demolition is permissible pursuant to cl 2.7 of LEP 2012. In determining the development application, I have had regard to the objectives of the zone; cl 2.3(2) of LEP 2012.

9. Clause 4.1B ‘Minimum lot size for dual occupancies’ applies to development for the purpose of dual occupancies. Under this clause, and with reference to the Lot Size for Dual Occupancies Development Map development cannot be carried out unless the lot is at least 650sqm. The site area of the land is 980.1sqm, meeting the standard.

10. Pursuant to cl 4.3 of the LEP 2012, ‘Height of buildings’ the maximum height development standard for the site is 9m. The development application complies with this height standard.

11. Clause 4.4A of the LEP 2012, ‘Exceptions to floor space ratio for residential accommodation in zone R2’, sets a formula for floor space ratio (FSR). Applying this calculation, the maximum FSR for building on the site is 0.447:1. The proposed development has an FSR of 0.446:1, complying with the FSR standard.

12. The site is identified on the maps in LEP 2012 as located in Class 5 Acid Sulfate Soils. Further, work is proposed within 100m of the adjacent Class 2 land to the west which is below 5m Australian Height Datum (AHD). In satisfaction of the clause the development application includes an acid sulfate soils management plan prepared by Geotechnical Consultants Australia Pty Ltd and dated 28 January 2022.

13. Clause 6.2 ‘Earthworks’ contains a list of matters that must be considered by the consent authority in the determination of a development application. The development application is accompanied by a geotechnical investigation report prepared by Geotechnical Consultants Australia Pty Ltd and dated 11 March 2022. I have reviewed this report and its assessment and recommendations in relation to the matters listed for consideration at cl 6.2(3) of LEP 2012. In determining the development application, I have given consideration to these matters, and I am satisfied none warrant the refusal of the development application.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. That the Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending DA2020/0192 in accordance with the following amended plans and documents:

Cover Sheet	DA00	21/03/2022	C	Katris Architects
Site/Analysis Plan	Sheet A01	21/03/2022	C	Katris Architects
Site Management Plan	Sheet A02	21/03/2022	C	Katris Architects
Demolition Plan	Sheet A03	21/03/2022	C	Katris Architects
Basement Floor Plan	Sheet A04	21/03/2022	C	Katris Architects
Ground Floor Plan	Sheet A05	21/03/2022	C	Katris Architects
Pool Plan	Sheet A05B	21/03/2022	C	Katris Architects
First Floor Plan	Sheet A06	21/03/2022	C	Katris Architects
Roof Plan	Sheet A07	21/03/2022	C	Katris Architects
North and South Elevations Plans	Sheet A08	21/03/2022	C	Katris Architects
Eastern, Western and Front Fence Elevations Plans	Sheet A09	21/03/2022	C	Katris Architects
3D Views	Sheet A10	21/03/2022	C	Katris Architects
Cross Section and Pool Section	Sheet A11	21/03/2022	C	Katris Architects
Long Sections	Sheet A12	21/03/2022	C	Katris Architects
Long Sections 2	Sheet A13	21/03/2022	C	Katris Architects
Driveway Sections	Sheet A14	21/03/2022	C	Katris Architects
Schedule of Colours and Finishes	Sheet A15	21/03/2022	C	Katris Architects
Tree Incursion Plan	Sheet A16	21/03/2022	C	Katris Architects

Landscape Plan D1087 Sheet 1 Revision I Dated 22/03/2022

Stormwater Plan SW-68 Sheet No 1 to 2 Revision C Dated 12/03/2022

Preliminary Aced Sulphate Soils Assessment Report Prepared by GCA Dated 28/01/2022

Updated BASIX Certificate 1290724M Dated 16/03/2022

Letter Dated 15/03/2022 From Building Innovations Australia

2. That the amended development application has been uploaded on the NSW planning portal on 31 March 2022.

3. That the applicant filed the amended development application with the Court on 31 March 2022.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA2020/0192 lodged with the Respondent on 7 May 2020 and subsequently amended as filed with the Court on 30 March 2022, seeking consent for the demolition of existing dwelling and structures, and the construction of a two-storey attached dual occupancy with swimming pools on Lot 8 DP 236988, known as 68 Morshead Drive, Connells Point, subject to conditions in Annexure A.

.…………………………

D M Dickson

Commissioner of the Court

Annexure A.pdf

***********

Decision last updated: 19 April 2022