Slieman v Georges River Council

[2022] NSWLEC 1703

Land and Environment Court

New South Wales

Medium Neutral Citation:

Slieman v Georges River Council [2022] NSWLEC 1703

Hearing dates:

Conciliation conference 13 December 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the Applicants in these proceedings to amend the name of the applicant to Elie Slieman.

(2) The appeal is upheld.

(3) Development consent is granted to development application No DA2022/0008 for demolition of existing structures, construction of a dual occupancy, swimming pool, fencing and subdivision at 46 Annette Street, Oatley, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Environmental Planning and Assessment Regulation 2021

Georges River Local Environmental Plan 2021 cll 6.2, 6.3, 6.4, 6.5, 6.6, 6.10

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 11

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

Category:

Principal judgment

Parties:

Elie Slieman (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Alice Spizzo Advisory (Applicant)
Georges River Council (Respondent)

File Number(s):

2022/229777

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a dual occupancy with swimming pools for each dwelling, together with subdivision of land, at 46 Annette Street, Oatley. The development application was lodged with Georges River Council on 27 December 2021. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 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 in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 13 December 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 14 December 2022, following the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court.

4. The amendments to the development application reduce the size of the garages for each of the dwellings, so that they are now single garages. The development application, as amended, includes side setbacks of 1.5m at the ground floor and below, and a side setback of 2.6m for the first floor. The design of the development also steps down to follow the topography of the land, as it falls toward the Georges River, with a height below the applicable height development standard. This design response to the site topography minimises the impacts of the proposed development, including maintaining the view corridors to the Georges River that currently exist between the site and the properties to the north.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Jurisdictional Statement that sets out the history of the development application and the jurisdictional prerequisites to the exercise of the power to grant development consent. I have considered the contents of the agreed statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in condition 1, and the documents contained in the Council’s Bundle of Documents. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• Development for the purposes of a dual occupancy is permissible in the R2 Low Density Residential zone in which the site is located, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP).

• The proposed development complies with the development standards in the GRLEP concerning height, floor space ratio and minimum lot size and width for dual occupancy developments.

• The development application includes earthworks. Based on the Geotechnical Investigation Report prepared by GCA dated 12 August 2021, I have considered the matters set out in cl 6.2(3) of the GRLEP.

• Based on the stormwater plans prepared by Capital Engineering Consultants, which were lodged with the Class 1 Application, I am satisfied of the matters in cl 6.3(2) of the GRLEP concerning stormwater management.

• Clause 6.4 of the GRLEP limits development on foreshore area and applies to the site. The proposed development seeks the erection of stairs within the foreshore building line, which fall within the exceptions permitted by cl 6.4(3)(c) as they form a walking track for the residents, for which development consent can be granted subject to consideration of the matters in cl 6.4(4). Based on the architectural plans, I have considered the matters set out in cl 6.4(4).

• Clause 6.5 of the GRLEP concerns development on land identified as sensitive land on the Riparian Lands and Waterways Map, which applies to part of the site. Based on the architectural plans, the landscape plan, the Statement of Facts and Contentions and the fact that the proposed development is on a site that is already developed, I have considered the matters in cl 6.5(3) and I am satisfied that the development is designed, sited and will be managed to avoid significant adverse environmental impact.

• The site is identified as ‘foreshore scenic protection area’ and cl 6.6 of the GRLEP applies. Based on the architectural plans and my observations at the site inspection, I am satisfied that the development facilitates the matters in cl 6.6(3). It is designed to follow the topography of the site on an already developed site, and will replace the loss of vegetation with a variety of new species so that there is no net loss of vegetation and trees. The views to the Georges River are preserved by the additional side setback at the upper level, which opens up the view corridor between the proposed development and the property to the north, as viewed from neighbouring properties and the public domain.

• The proposal is for residential accommodation on a site within the foreshore scenic protection area, and, therefore, cl 6.10 of the GRLEP requires that the development exhibit design excellence. Based on the architectural plans and my observations at the site inspection, together with the Statement of Environmental Effects dated November 2021, I have considered the matters in cl 6.10(5) and I accept the parties’ agreement that the development exhibits design excellence.

• Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 11 of the SEPP B&C continues to apply to the proposed development. Chapter 11 concerns the Georges River system. Based on the documents accompanying the Class 1 Application, I have considered the matters required to be considered by s 11.6 of the SEPP B&C.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). As the site has a history of use for residential purposes, it is unlikely to be contaminated.

• The site is within the coastal environment area and the coastal use area, pursuant to the SEPP R&H. Based on the Statement of Environmental Effects dated November 2021, the architectural plans, the landscape plan and the extent of the proposed development on an already developed site, I have considered the matters in ss 2.10(1) and 2.11(1)(a), and, consistent with ss 2.10(2)(a) and 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP R&H.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

7. The original development application was publicly notified for 14 days from 10 February 2022 and 24 February 2022, and a number of submissions were received. In addition, the resident objectors made submissions at the site inspection. I have considered the issues raised in those submissions. I note that those issues include, inter alia, the overshadowing of 48 Annette Street and view loss from the living areas of 41 and 43 Annette Street. The parties agree that the proposed development complies with the controls in the applicable development control plan concerning overshadowing with east-west sites, and that the living area of 48 Annette Street retains light from the eastern facing window. With respect to view loss, I note that the parties agree that 43 Annette Street will retain water views from its upper living area, and the increased side setbacks of the proposed development are such that the view corridor from 41 Annette Street to the water will be increased.

8. 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)).

9. 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.

10. The Court notes:

1. Georges River Council, the Respondent, as the relevant consent authority has agreed, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to amend Development Application No. DA2022/0008 in accordance with the amended plans and documents listed below:

1. Amended Aboricultural Impact Assessment and Tree Management Plan dated 22 November 2022;

2. Amended Architectural Plans (including BASIX dated 13 December 2022 and NatHERS) prepared by ES Design (01-23) Issue D dated 14 October 2022 and Issue E dated 15 November 2022;

3. Amended Landscape Plans prepared by Ground Ink (LDA-001, LDA-101, LDA-201, LDA-301) Revision I dated 13 December 2022;

2. The Development Application was lodged with the Respondent on 27 December 2021 by Elie Slieman. Consent to the lodgement of the DA was given on 8 November 2021 by Anna Arcidiacono, the owner of the Site.

3. These proceedings have been commenced by Anna and John Arcidiacono. The Respondent agrees to the name of the Applicant in these proceedings being amended to Elie Slieman.

11. The Court orders that:

1. Leave is granted to the Applicants in these proceedings to amend the name of the applicant to Elie Slieman.

2. The appeal is upheld.

3. Development consent is granted to development application No DA2022/0008 for demolition of existing structures, construction of a dual occupancy, swimming pool, fencing and subdivision at 46 Annette Street, Oatley, subject to the conditions of consent in Annexure A.

Joanne Gray

Commissioner of the Court

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Annexure A

Decision last updated: 14 December 2022