Shorefront Corp Pty Ltd v Georges River Council

[2024] NSWLEC 1803

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shorefront Corp Pty Ltd v Georges River Council [2024] NSWLEC 1803

Hearing dates:

Conciliation conference on 21 November 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA2022/0614, as amended, for the construction a detached secondary dwelling at the rear of the existing principal dwelling on Lot 184 of DP 11098, known as 45 Kuroki Street ,Penshurst, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – construction of secondary dwelling – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 4.4A, 5.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.9, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 1, ss 52, 53

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

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

Texts Cited:

Georges River Council Community Engagement Strategy 2018-2028

Category:

Principal judgment

Parties:

Shorefront Corp Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Hainke (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/179773

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Georges River Council, of Development Application DA2022/0614, which seeks consent for the construction of a detached secondary dwelling at the rear of the existing principal dwelling on lot 184 of DP 11098, known as 45 Kuroki Street, Penshurst.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 November 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. Accordingly, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of the agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the Applicant amending the development application to adequately address the issues in contention.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this, I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Georges River Council Community Engagement Strategy 2018-2028 from 2 to 16 March 2023. Fifteen submissions were received in this time, and two residents made oral submissions at the commencement of proceedings. A further, limited renotification occurred as a result of the amendments to the application on 23 September 2024, to which three additional submissions were made. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to GRLEP cl 4.3, a maximum building height of 9m applies to the subject site. The proposed development complies with this development standard with a maximum height of 4.65m.

11. GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.55:1. Further pursuant to GRLEP cl 4.4A, which provides exceptions to FSR, as the site is less than 650m² the maximum FSR is unchanged. The proposed development again complies with this development standard with a maximum FSR of 0.3.5:1.

12. GRLEP cl 5.4(9) establishes a maximum total floor area for secondary dwellings. The application as amended proposes a total floor area of 59m², which meets the requirements of this clause.

13. The site is not identified as a heritage item, but is located within the Penshurst Heritage Conservation Area (HCA). Based on the amended architectural and landscape plans, by Janssen Designs dated 13 September 2024, and the Heritage Impact Statement by Weir Phillips Heritage and Planning dated 10 October 2024, I accept that the effect of the proposal on the heritage significance of the HCA is acceptable, as required by GRLEP cl 5.10.

14. The site is also not identified in the flood planning area, nor mapped as containing acid sulfate soils pursuant to GRLEP cll 5.21 and 6.1 respectively.

15. Minor earthworks are proposed in this development, as demonstrated by the drawing A10 ‘Cut and Filled’, revision D by Janssen Designs. From this, the parties’ submission, the amended architectural plans, and the relevant agreed conditions of consent, I accept that the matters set out at GRLEP cl 6.2(3) have been considered and the earthworks of the proposed development are acceptable pursuant to these considerations.

16. From the parties’ submission, the landscape concept plan by Vision Dynamics dated 4 September 2024, the stormwater drawings by Mance Arraj Civil and Structural Engineers dated 12 September 2024, and the relevant agreed conditions of consent, I accept that the proposed development adequately meets the requirements of GRLEP cl 6.3(2). I note that the two objectors who spoke at the commencement of the conciliation conference raised issues of stormwater relating to a pipe that traverses the site. However, this pipe does not fall under any known easement, nor has its position been accurately pinpointed. Irrespective of this, the stormwater management requirements of cl 6.3 are met.

17. GRLEP cl 6.9 requires the consent authority to be satisfied that certain essential services are available, or can be made available when required. The parties submit, and I accept, that the supply of water, electricity, telecommunications and management of sewage is currently available to the site, and further that adequate stormwater drainage and vehicular access will be provided as per the works proposed in the application.

18. GRLEP cl 6.12 Landscaped areas in certain residential and conservation zones applies to the proposed development. From the parties’ submission, the landscape plan, the architectural plans, and the relevant agreed conditions of consent, I accept that the proposed development meets the landscape requirements set out in cl 6.12(4), and further that the landscaped area exceeds the 20% of the site area required by cl 6.12(5).

19. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use.

20. Pursuant to s 27 of the EPA Regulation, a BASIX certificate that relates to the development as amended, accompanies the application. Compliance with this certificate is required under the agreed conditions of consent.

21. The site is located within the Georges River Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). From the parties’ submission, the stormwater drawings, and the amended architectural plans, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

22. Ausgrid overhead powerlines are identified as being in the vicinity of the subject site. Accordingly, pursuant to s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021, Ausgrid was given written notice of the proposed development. A letter of response was received on 30 October 2023 stating that Ausgrid had no objection to the proposed development subject to the imposition of conditions, which form part of the agreed conditions of consent at Annexure A.

23. Chapter 3 Diverse Housing, Part 1 of the State Environmental Planning Policy (Housing) 2021 (SEPP) applies to the development. Accordingly, from the parties’ submission and the architectural plans I accept that the proposed development does not offend any of the requirements of s 52(2) or the non-discretionary development standards of s 53 of this SEPP.

Conclusion

24. For these reasons, 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 am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. The Court notes:

1. Georges River Council, as the relevant consent authority, has agreed, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA2022/0614 in accordance with the following amended plans and documents:

1. Amended architectural plans prepared by Janssen Designs:

Drawing No.	Rev.	Title	Date
A00	D	COVER PAGE	13.09.2024
A01	D	LEP CONTROL	13.09.2024
A02	D	DEMOLITION PLAN	13.09.2024
A03	D	SITE ANALYSIS PLAN	13.09.2024
A04	D	SITE CALCULATION	13.09.2024
A05	D	SITE PLAN	13.09.2024
A06	D	FLOOR PLANS	13.09.2024
A07	D	ELEVATIONS	13.09.2024
A08	D	SECTIONS AND STREETSCAPE	13.09.2024
A09	D	SHADOW DIAGRAM	13.09.2024
A10	D	CUT AND FILLED	13.09.2024

2. Amended landscape plan prepared by Janssen Designs:

Drawing No.	Rev.	Title	Date
24100	B	Landscape Concept Plan	13.09.2024

3. Amended stormwater plans prepared by Mance ARRAJ Civil & Structural Engineers:

Drawing No.	Rev.	Title	Date
ER010	A	Stormwater Layout Drawing Sediment & Erosion Control Plan Details and Notes	12.09.2024
SW010	A	Stormwater Layout Drawing Ground and Roof Level and Various Details	12.09.2024

4. BASIX Certificate No 1344497S_04 prepared by Jake Janssen;

5. Heritage Impact Statement prepared by Weir Phillips Heritage and Planning dated 10 October 2024; and

6. Owner’s Consent Letter dated 4 November 2024.

2. The Applicant provided the amended development application to the Court on 21 November 2024.

26. The Court orders:

1. The appeal is upheld.

2. Development application DA2022/0614, as amended, for the construction a detached secondary dwelling at the rear of the existing principal dwelling on Lot 184 of DP 11098, known as 45 Kuroki Street, Penshurst, is determined by the grant of development consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 13 December 2024