Sim v Georges River Council

[2024] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sim v Georges River Council [2024] NSWLEC 1582

Hearing dates:

Conciliation Conference 22 August 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Class 1

Before:

Coetzee AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA2023/0026, as amended, for the demolition of existing structures and the construction of an attached two-storey dual occupancy, a swimming pool for each dwelling, landscaping, site works and the Torrens title subdivision, at Lot 1 in Deposited Plan 1306530 known as 1 Moons Avenue, Lugarno, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy development in R2 zone – conciliation conference – agreement between the parties – cl 4.6 written request-minimum lot size - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA, 39

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Georges River Local Environmental Plan 2021, cll 2.3, 4.1A, 4.1B, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.6, 6.9, 6.10, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6, Chs 2, 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6, Chs 2, 4

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Cases Cited:

Initial Action Pty Ltd V Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Category:

Principal judgment

Parties:

Philip Geoffrey Sim (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
K Sim (Solicitor)(Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
Crowther Sim Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

2024/57633

Publication restriction:

No

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 by Georges River Council (the Respondent) of development application DA2023/0026 for demolition works, the removal of one tree, construction of an attached two-storey dual occupancy, a swimming pool for each dwelling, landscaping, site works and the Torrens title Subdivision at 1 Moons Avenue, Lugarno legally described as Lot 1 in DP 1306530 (the DA).

2. The Court arranged a conciliation conference pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which occurred on 22 August 2024. I have presided over the conciliation conference. In hearing this matter no site visit was undertaken by agreement.

3. During the conciliation conference, the parties reached an agreement, pursuant to s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed agreement was submitted to the Court on 29 August 2024.

4. The decision agreed upon is for the granting of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. A copy of these conditions is included in Annexure A.

5. During the conciliation conference, the parties explained how the jurisdictional requirements have been satisfied to permit the Court to make the agreed orders in the s 34 agreement and at [48].

6. The site is zoned R2 – Low Density Residential under cl 2.1 of the Georges River Local Environmental Plan 2021 (GRLEP) in which dual occupancy is permitted with consent. In accordance with cl 2.3, the objectives of this zone 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.

7. Relevantly, the site is also situated within the Georges River Foreshore Scenic Protection Area (FSPA) as identified on the Foreshore Scenic Protection Area Map at cl 6.6(2) the GRLEP.

Variation to minimum lot size is sought

8. The Applicant has prepared a written Clause 4.6 variation request titled – ‘Amended Clause 4.6 Variation Minimum Lot Size, prepared by Avenue Town Planning dated 25 July 2024’ (Written Request) seeking variation to cl 4.1B(3) of the GRLEP.

9. The contravention can be simply summarised as follows: the site area of 942m² does not meet the minimum lot size requirement of 1000m² and is non-compliant by 58m², a 5.8% variation of the development standard.

10. The site is a wedge-shaped lot, fronting Moons Avenue with a primary frontage width of 30.785m and a rear (western) boundary of 8.592m. The site has a totalled surveyed area of 942m² (Refer to Figure 1).

11. I am satisfied that the Applicant’s Written Request seeking to justify the contravention of the development standard in cl 4.1B(3) of the GRLEP, has adequately addressed the matters required to be demonstrated by cl 4.6(3) of GRLEP for the reasons that follow.

12. It is helpful to set out the relevant objectives at cl 4.1B of the GRLEP that are:

4.1B   Minimum lot sizes and special provisions for certain dwellings

(1)  The objectives of this clause are as follows—

(a)  to ensure that lots for residential accommodation are of sufficient size to accommodate proposed dwellings, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas,

(b)  to ensure that dual occupancies in Zone R2 Low Density Residential retain the general low-density scale and character of existing single dwelling development,

(c)  to ensure that multi dwelling housing in Zone R3 Medium Density Residential retain the general medium-density scale and character of existing multi dwelling development,

(d)  to minimise any likely adverse impact of the development on the amenity of the area,

(e)  where an existing lot is inadequate in terms of its area or width—to require the consolidation of 2 or more lots.

13. Pursuant to cl 4.6(3)(a) of the GRLEP, the Written Request outlines compliance with the minimum lot size is unreasonable or necessary as the proposed development is consistent with the relevant objectives of cl 4.1B(1) of the GRLEP. The consistency with the objectives can briefly be summarised as: the proposal achieves compliance with the built form, being a wide street frontage, suitable setbacks from the street frontage to accommodate vehicle parking and access, and is positioned on the eastern portion of the site. The narrow western portion of the site cannot be appreciated from the street and does not contain any built form or contributes to any streetscape or neighbour impacts. The building bulk and scale is less than what can be achieved on a site by a single dwelling, is modest in height, has recessed upper floors, an oversupply of private open space and landscaped setbacks. The minimal vegetation removal and proposed landscaping will also maintain the objectives of the FSPA by protecting and maintaining significant views of and from the Georges River.

14. Pursuant to cl 4.6(3)(b) of the GRLEP I am satisfied that there are sufficient environmental planning grounds to justify the contravention. Primarily the proposal is compliant with the objectives of Zone R2 – Low Density Residential. Additionally, the Applicant has provided further environmental planning grounds which can be summarised below:

1. The shape of the lot is a unique wedge shape with a wide street frontage of 30.785m on the eastern side, narrowing to 8.592m on the western edge. The numerical value of the non-compliance is 5.8% of the standard and considered relatively minor. This non-compliance with the standard is unlikely to set precedence as the very few blocks have this unique width and shape.

2. The proposal’s built form is on the eastern part of the site and has a greater setback of approximately 21m to the ground flood deck and 25-31.5m to upper floors which exceed the Georges River Development Control Plan 2021 (GRDCP) requirement of 7-8m, whilst still maintaining and avoiding any neighbourhood impact.

3. The Gross Floor Area is 415m² which is less than the maximum permitted of 565.62 m² for the site and is also less than what is permissible for a single dwelling. Despite being dual occupancy it is a smaller form and has a reduced street scape appearance.

4. The side setbacks are reduced, particularly on the southern side to minimise shadowing and is below the maximum height standard in cl 4.3 of the GRLEP.

5. The proposal will achieve a high level of residential amenity with open space, open plan living, solar access and ventilation.

6. The proposal is consistent with, and will achieve the aims subcll (a) and (f) in cl 1.2 of the GRLEP:

(a) to provide for housing choices to cater for changing demographics and population needs,

…

(f)  to promote a high standard of urban design and built form

7. The proposal will also specifically achieve the objectives contained within subss 1.3(c) and (g) of the EPA Act:

‘(a) The proposal promotes the orderly and economic use and development of land through the redevelopment of an existing dwelling to provide a contemporary dual occupancy development with high functionality and amenity that meets current living standards (objective 1.3c));

(b) The proposed development promotes good design and amenity of the built environment through a well-considered design which is responsive to its setting and context, and will improve the amenity for future residents whilst respecting the local built form character (objective 1.3(g))’.

15. Pursuant to cl 4.6(4)(b) of the GRLEP, development consent cannot be granted unless the concurrence of the Planning Secretary has been obtained. In the Written Request, the Applicant has made reference to the Department of Planning, Industry and Environment Planning Circular PS 20-002 dated 5 May 2020. The concurrence of the Secretary can be assumed for exceptions to development standards made under cl 4.6 subject to conditions in the PS 20-002 Assumed concurrence notice – noting that these conditions are not relevant to the minimum lot size development standard.

16. However, under s 39(6) of the LEC Act, on appeal, the Court has the power under cl 4.6(2) to grant development consent that contravenes a development standard without obtaining or assuming the concurrence of the Planning Secretary. Though, as stated in Initial Action Pty Ltd V Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [29]:

“29…[T]he Court should still consider the maters in cl 4.6(5) when exercising the power to grant consent for development that contravenes a develop standard.”

17. Pursuant to cl 4.6(4)(a)(ii), I am satisfied that the proposed development is in the public interest as it is consistent with the objectives of the cl 4.1B minimum lot size, and with the objectives of the R2 Low Density Residential zone. Additionally, the Applicant has considered the privacy matter raised by an adjoining resident in relation to the pool area and this has been incorporated into the Amended Architectural Plans (Sections, A3000, Issue F Dated 23/07/2024).

18. I also note that the proposed subdivision of the lots is consistent with the provisions at cl 4.1A(2)(a)(ii) of the GRLEP which provides that development consent may be granted for the subdivision of land in the R2 - Low Density Residential zone if the lot size for each resulting lot will be at least 300m².

19. The Amended Architectural Plans (A5000 GFA/ Landscape Calculations Plan, dated 23/07/2024) provides for the allotments for the proposed dwellings to be:

1. Lot 1 - 500m²; and

2. Lot 2 - 442m².

20. For the reasons set out above, I am satisfied that the contravention of the minimum lot size standard at cl 4.1B should be upheld.

Environmental Planning and Assessment Act 1979

Owners consent

21. The Applicant is the registered proprietor of the property and has provided owners’ consent.

Public Exhibition

22. The development application was notified by the Respondent from 16 March 2023 to 30 March 2023. One submission was received in response to the notification regarding privacy concerns from the pool area at neighbouring property at 5 Moons Avenue Lugarno. The parties have advised the Court that the amended application has considered and addressed the concern raised.

State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity SEPP)

23. Chapter 2 of the Biodiversity SEPP applies to the Amended Application for the removal of one tree identified as Tree 7 in the Amended Architectural Plans (Ground Floor Plan, A1000, Issue F, dated 23/07/24) and Amended Landscape Plan, (Landscape Plan, IS0310DA1, Issue C, Dated 29/07/24). The agreed conditions of consent (Annexure A) require that the development is to be carried out strictly in accordance with the approved plans and support documents referred to within that condition, which include the Amended Landscape Plan.

24. Chapter 6 of the Biodiversity SEPP applies to the Amended Application as the site is located within the regulated Georges River Catchment. I have considered s 6.6(1) and am satisfied that the effect on water quality will be neutral and impact on water flow will be minimised using onsite detention tanks, conditions of consent in Annexure A pertaining to stormwater management and two registered stormwater easements.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP)

Coastal management

25. Chapter 2 of the Resilience SEPP does not apply to the proposal site as the site is not within a coastal use area.

Remediation of land

26. Pursuant to Chapter 4, s 4.6 of the Resilience SEPP the consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. I accept the parties’ agreement that the site has a long-standing use for residential purposes and no reasons to suspect it is contaminated.

State Environmental Planning Policy (Transport & Infrastructure) 2021 (SEPP T&I)

27. Chapter 2 Infrastructure, s 2.48 is applicable to the site. The Respondent forwarded the application to Ausgrid and a response was received on the 28 March 2023 which found the proposed development satisfactory subject to the imposition of conditions which are now incorporated in the conditions of consent in Annexure A.

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

28. The proposed development is a BASIX affected development (s 27 of Environmental Planning and Assessment Regulation 2021 (EPA Regs)). The development application (DA) was lodged on 12 January 2023, prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022, which does not apply in accordance with the savings provisions under s 4.2(1)(a) to a DA submitted but not finally determined before 1 October 2023. The parties agree, and I am satisfied that the DA is accompanied by a BASIX Certificate (Certificate No 1361589M, dated 16/12/2022) that satisfies the repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Georges River Local Environmental Plan 2021

Clause 2.6 – Subdivision – consent requirements

29. Pursuant with cl 2.6 of the GRLEP, the proposed development requires subdivision consent. Clause 2.6(2) requires that development consent must not be granted for the subdivision of land unless the resulting lots are less than the minimum size shown on the Lot Size Map in relation to that land, refer to [11] and [12]. Consent conditions 62-66 address subdivision requirements.

Clause 2.7 – Demolition requires development consent

30. Pursuant with cl 2.7 of the GRLEP, the proposed development demolition requires development consent.

Clause 4.3 – Height

31. Clause 4.3 height of buildings applies to the proposal site and allows a maximum building height of 9m.  The architectural plans, prepared by BJB Architects (Sections, A-3000, Issue F, dated 23/07/24), confirm that the proposed amended application, complies with the maximum height development standard.

Clause 4.4 – Floor space ratio

32. Clause 4.4 floor space ratio (FSR) applies to the proposal site and allows a maximum FSR of 0.55:1. The Amended Architectural Plans show that the amended application does not exceed the maximum FSR, at 0.43:1 (A5000 GFA/ Landscape Calculations Plan, Issue F, dated 23/07/2024).

Clause 5.10 – Heritage

33. The proposal site is not identified on the GRLEP Map as being a heritage item or within a Heritage Conservation Area.

Clause 6.1 – Acid Sulfate Soils

34. Clause 6.1 of the GRLEP requires the consent authority to consider any potential acid sulfate affectation. The subject site is within a Class 5 area as specified in the GRLEP Acid Sulfate Soils Map. Pursuant to cl 6.1(2) Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. I accept that the proposal is elevated and does not involve excavation that will lower the watertable of an adjacent Class 1, 2, 3 or 4 land. Accordingly, pursuant to 6.1(3) an acid sulfate soils management plan is not required.

Clause 6.2 – Earthworks

35. Clause 6.2 applies to the proposed site and requires the consent authority to consider various matters pursuant to subcll 6.2(3)(a)-(i). The parties agree and I accept that the proposed earthworks and excavations are satisfactory and that the cut and fill is balanced across the site. The design of the building accommodates the sites’ slope and fall of the land by adding usable area to the building with the rear decks elevated and will be constructed on piers. The agreed conditions of consent in Annexure A further ameliorate any potential earthworks impacts.

Clause 6.3 – Stormwater

36. Clause 6.3 of the GRLEP applies to the proposal site. The consent authority must be satisfied that the development meets the requirements in subcll 6.3(2)(a)-(d). Based on the combination of proposed landscaped areas of 31% of the site, the onsite detention in Amended Application Plans (Section 3, A3100, Issue F, dated 23/0/2024), the registered stormwater easements and conditions of consent in Annexure A, I am satisfied that the development minimises impacts of urban stormwater on adjoining properties, native bushland and receiving waters.

Clause 6.6 – Foreshore Scenic Protection Area

37. Clause 6.6(3) of the GRLEP applies to the proposal site. The consent authority must be satisfied that the development facilitates the following provisions set out in subcll 6.6(3)(a)-(g) of the GRLEP:

(a)  the protection of the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation,

(b)  the avoidance or minimisation of the disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations,

(c)  the maintenance and enhancement of native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors,

(d)  the achievement of no net loss of significant vegetation or habitat,

(e)  the avoidance of clearing steep slopes and facilitation of the stability of the land,

(f)  the minimisation of the impact on the views and visual environment, including views to and from the Georges River, foreshore reserves, residential areas and public places,

(g)  the minimisation of the height and bulk of the development by stepping the development to accommodate the fall in the land.

38. The parties agree that cl 6.6(3) is further addressed by way of the amended architectural plans and amended cl 4.6 variation request. I am satisfied that the proposal facilitates these requirements, as the site does not contain remnant vegetation, habitat or threatened species, and will not impact on rock formations or clearing of steep slopes. The proposed removal of one native tree, deemed of low retention value by an arborist due to decay, is offset by a comprehensive landscape plan to enhance natural features and biodiversity and that the new built form will be appropriately setback from the street, previewing views to the west and northwest for neighbouring properties.

Clause 6.9 - Essential services

39. Clause 6.9 of the GRLEP states that development consent must not be granted unless the consent authority is satisfied that essential services are available. Given the locality of the site in a developed residential area, combined with correspondence with Ausgrid, and the amended redefinition/subdivision plan DP1306530, dated 17/5/2024, which shows adequate arrangement are in place for essential services for cl 6.9(e) stormwater drainage I am satisfied cl 6.9 is addressed.

Clause 6.10 – Design excellence

40. Clause 6.10 of GRLEP applies to the proposal to exhibit design excellence as it is for the erection of a new building for the purposes of residential accommodation in an R2 Zone. Before granting consent, regard must be given to the matters provided in cl 6.10(5). The parties have stated the following:

• “Clause 6.10(5)(a) A high standard of architectural design is proposed as detailed in the Amended Architectural Plans prepared by BJB Architects and dated 23 July 2024 and the amended landscape plan prepared by Isthmus Pty Ltd dated 29 July 2024 (Amended Plans);

• Clause 6.10(5)(b) The proposed development includes a comprehensive design for the landscaping of the site and improves the quality and amenity of the public domain as detailed in the Amended Plans;

• Clause 6.10(5)(c) The design of the proposed development will not detrimentally impact on view corridors; and

• Clause 6.10(5)(d) The proposed development considers and addresses the matters in clause 6.10(5)(d) by way of the Amended Plans, the Statement of Environmental Effects prepared by Avenue Town Planning dated 20 December 2022, and the Amended Cl 4.6 Variation Request prepared by Avenue Town Planning, dated 25 July 2024.”

41. I consider, based on the above, that the proposed development exhibits design excellence pursuant to cl 6.10(4) of the GRLEP.

Clause 6.12 – Landscaped area

42. Clause 6.12 of the GRLEP applies to the site as it is zoned R2 Low Density Residential and is within the FSPA. Development consent must not be granted for development for a dual occupancy on land located inside the FSPA, unless at least 30% of the site area consists of landscaped area.

43. As shown on Amended Architectural Plans (GFA/ Landscape Calculations Plan, A5000, Issue F, dated 23/07/2024) the landscaped areas for the site are:

1. 300m² overall, being 31.8% of the area of the Site;

2. 160.6m² for Lot 1, being 32.1% of the area of that part of the Site; and

3. 139.4m² for Lot 2, being 31.5% of the area of that part of the Site.

Conclusion

44. I have considered the jurisdictional prerequisites, and I am satisfied that the amended application has resolved Council’s contentions and is now a development application suitable for approval.

45. 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.

46. 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.

47. The Court notes:

1. The Respondent approves to the Applicant amending Development Application DA2023/0026, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 to include the following plans and documents: .

Drawing Title	Sheet No.	Revision	Date
Architectural Plans prepared by BJB Architects
Cover Sheet	A-0000	F	23.07.24
Streetscape Analysis	A-0010	F	23.07.24
Site Analysis Plan	A-0200	F	23.07.24
Roof/ Site Plan	A-0900	F	23.07.24
Ground Floor Plan	A-1000	F	23.07.24
First Floor Plan	A-1100	F	23.07.24
Elevations 01	A-2000	F	23.07.24
Elevations 02	A-2100	F	23.07.24
Sections	A-3000	F	23.07.24
Section 03	A-3100	F	23.07.24
GFA & Landscape Calculation	A-5000	F	23.07.24
Driveway Section prepared by Loucas Architects
Driveway Section	A-5200	C	22.12.22
Landscape Plan prepared by Isthmus Pty Ltd
Landscape Plans	1S0310/DA1	C	29.07.24
Documents
Amended Clause 4.6 Variation Minimum Lot Size prepared by Avenue Town Planning 2116	-	-	25.07.24
BASIX Certificate by Building &Energy Consultants Australia 1361589M	-	-	16.12.22
Plan of Redefinition of Lot 3 in DP 506872	1	-	17.05.24

2. The Applicant filed amended plans and other documents with the Court on 12 September 2024.

Orders:

48. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA2023/0026, as amended, for the demolition of existing structures and the construction of an attached two-storey dual occupancy, a swimming pool for each dwelling, landscaping, site works and the Torrens title subdivision, at Lot 1 in Deposited Plan 1306530 known as 1 Moons Avenue, Lugarno NSW, subject to the conditions of consent in Annexure A.

L Coetzee

Acting Commissioner of the Court

Annexure A

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Decision last updated: 20 September 2024