The Trustee for AMS Trust v Georges River Council

[2024] NSWLEC 1827

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for AMS Trust v Georges River Council [2024] NSWLEC 1827

Hearing dates:

Conciliation Conference held 5 December 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Applicant’s written request, prepared by Chapman Planning Pty Ltd dated 25 October 2024, made pursuant to cl 4.6 of the Georges River Local Environmental Plan 2021, to vary the building height development standard in cl 4.3 of the Georges River Local Environmental Plan 2021, is upheld.

(3) Development Application No. DA2023/0566, as amended, for partial demolition of an existing dwelling house, alterations and additions to the dwelling house, including the construction of an additional level, installation of a swimming pool and associated landscaping at 103 Kyle Parade, Kyle Bay, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – 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, s 38

Georges River Local Environmental Plan 2021, cll 4.3, 4.4A, 4.6, 5.10, 6.3, 6.6, 6.9, 6.10, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11, Ch 6

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

Category:

Principal judgment

Parties:

The Trustee for AMS Trust ABN 54 682 122 678 (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/243155

Publication restriction:

Nil

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 of Development Application DA2023/0566 seeking consent for the partial demolition of an existing dwelling house, alterations and additions to the dwelling house, including the construction of an additional level, construction of a swimming pool and associated landscape works (Proposed Development) at 103 Kyle Parade, Kyle Bay, legally described as Lot 2 in Deposited Plan 1107334 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 5 December 2024. I presided over the conciliation conference.

3. 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.

4. 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 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 4.6 of the Georges River Local Environmental Plan 2021 (GRLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement to which I have referred.

7. The Development Application was notified by the Respondent between 23 January 2024 and 15 February 2024 and did not receive any submissions.

8. As this is an application for alterations and additions to an existing dwelling, the parties agree and the Court is satisfied that the required essential services are available on the Site pursuant to cl 6.9 of the GRLEP.

9. The Site is not listed as a heritage item and is not located within a heritage conservation area, nor does it contain any identified heritage significance. Accordingly, cl 5.10 of the GRLEP is not enlivened.

10. The parties’ experts agree in the JER Planning at par 12 that the Proposed Development numerically complies with the floor space ratio (FSR) development standard of 0.443:1 pursuant to cl 4.4A(2) of the GRLEP because the amended plans demonstrate a gross floor area (GFA) of 450.5m² and a complying FSR of 0.418:1.

11. Drawing DA-03 Revision E demonstrates a proposed landscape area of 298.m² or 27.6% of the site area which complies with the minimum landscape area development standard of 25% for a dwelling house located on land within the Foreshore Scenic Protection Area pursuant to cl 6.12(5)(b) of the GRLEP. The Respondent’s landscape expert in the Landscape Joint Expert Report filed 22 November 2024 provides as follows in response to the terms of cl 6.12(5)(b) of the GRLEP at p 5:

“From Rev E, I am satisfied with all Particulars (a) to (f). Area calculations have been addressed, garden bed soil depths, increase in tree canopy and other forms of vegetation, provides for a better outcome, than what currently exists.”

12. The Site is identified as Class 5 Acid Sulfate Soils and is within the vicinity of Class 1 soils located at the waterline. The Statement of Environmental Effects (SEE), prepared by Chapman Planning Pty Ltd dated 1 August 2023 (located at Tab 3 of the Class 1 Application) confirms that there are no works below the water level.

13. The Proposed Development contravenes the maximum height of building (HOB) development standard of 9m. The parties’ town planning experts considered this in a Joint Expert Report filed 20 November 2024 (JER Planning) agree that the contravention is confined to 1.75m length of the addition at the first floor level of the dwelling house and that the minor variation is supported by a written request to justify the minor contravention of the maximum height of building development standard, prepared by Chapman Planning dated 25 October 2024 (Written Request). The Written Request confirms that the maximum height of the ensuite and roof form over the terrace at the first floor level measured from the underside of the slab at the lower ground floor level is 9.62m resulting in a contravention of 620mm and 6.8% to the development standard.

14. I reproduce below at Fig 1 an extract of the Building Height Plan prepared by Graphio AM Architects which is also included in the Written Request on p 2.

Figure 1: Extract of the Building Height Plan prepared by Graphio AM Architects

15. The experts agree that the proposed alterations and additions to the dwelling meet the objectives of the HOB development standard at cl 4.3 of the GRLEP as addressed in the Written Request.

16. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the HOB development standard in cl 4.3 of the GRLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the GRLEP.

17. The Site is identified as Foreshore scenic protection area on the Foreshore Scenic Protection Area Map and pursuant to cl 6.6(3) of the GRLEP:

In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must be satisfied that the development would facilitate the following—

(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.

18. The Respondent’s landscape expert in the Landscape Joint Expert Report filed 22 November 2024 provides as follows in response to the terms of cl 6.6 of the GRLEP at p 4:

“I am satisfied with the proposed six (6) medium sized trees on the waterfront are, whilst other vegetation shall soften the built form from the waterfront. The side Northern boundary wall behind the boatshed shall be softened by climbers. This is a good outcome.”

19. The planning experts further agree at par 17 of the JER Planning that the amended architectural plans (Section AA and Landscape Plan DA-09) show the retention of the existing rock face and the cantilever of the edge of the pool meeting the provisions of cl 6.6(3) of the GRLEP.

20. Development consent must not be granted for development to which cl 6.10 of the GRLEP applies unless the consent authority considers that the development exhibits design excellence. The parties’ experts agree in the JER Planning at par 20 that the Proposed Development meets the relevant design excellence matters at cl 6.10(5) of the GRLEP including:

i.   The subject site is suitable for the proposed alterations and additions to the dwelling house as addressed the proposed alterations and additions are compatible with the form and scale of development within the visual catchment of the site.

…

iv.    The additions to the dwelling house are compatible with the adjoining dwellings in terms of building height, scale and urban form.

v.   The proposed alterations and additions are a suitable build, massing and modulation of built form that steps with the topography and is compatible with the height of the adjoining properties at 105 and 101 Kyle Parade.

…

xi.   The proposed additions to the dwelling house do not result in unreasonable overshadowing or visual or acoustic privacy impacts. The proposed landscape works including landscaping within the foreshore and on the western side of the right of way (driveway) contribute to the landscape setting.”

21. The Site is located in the Georges River Catchment and therefore Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) applies to the Proposed Development pursuant to s 6.1(c) of the Biodiversity and Conservation SEPP. The following sections include jurisdictional prerequisites relevant to the Proposed Development:

1. Section 6.6 Water quality and quantity

2. Section 6.7: Aquatic ecology

3. Section 6.8: Flooding

4. Section 6.9: Recreation and public access

5. Section 6.10: Total catchment management

22. In accordance with the above sections, the parties agree the Proposed Development is not likely to have an adverse environmental impact. Further, the Applicant relies on stormwater plans filed at Tab 14 of the Class 1 Application which demonstrate how waterflow on the Site will be managed, and stormwater is further addressed in the conditions of consent at 1, 15, 28 and 43.

23. Similarly, cl 6.3 of the GRLEP precludes development consent from being granted unless the consent authority is satisfied that the development maximises the use of water permeable surfaces on the land, includes an on-site stormwater retention and avoid significant adverse impacts of stormwater runoff on the adjoining properties. The Development Application is accompanied by Stormwater Plans, prepared by Aidan Hogan (see Tab 14 of the Class 1 Application) that provides detail of the proposed stormwater management of the Site. Accordingly, The Court can therefore be satisfied that the development proposal is compliant with clause 6.3.

24. In accordance with s 6.11 of the Biodiversity and Conservation SEPP, though the Site is within 100m of a natural water body, the land use proposed is not water-dependent, and no land use conflict is likely to arise.

25. The Site is identified as ‘sensitive land’ pursuant to cl 6.5 (“Riparian land and waterways”) of the GRLEP. The SEE confirms that:

1. the proposed works are unlikely to impact upon the water quality or flows of Kyle Bay, stability of the foreshore, or significant adverse impact upon flora and fauna;

2. the proposal is accompanied by a Stormwater management plan which ensures that stormwater run-off is managed appropriately on site to mitigate pollution or siltation of the waterway;

3. the proposal includes landscaping across the waterfront portion of the site to ensure the development is viewed within a landscaped setting and will use local native species as required; and

4. the development will not involve water extraction from Kyle Bay.

26. The Site is within a Coastal Environmental Area and Coastal Use Area and therefore ss 2.10 and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provide relevant jurisdictional prerequisites.

27. In accordance with s 2.10 of the Resilience and Hazards SEPP, the consent authority must not grant consent unless it is satisfied that the development is designed, sited, and will be managed, to minimise the impact on the matters set out in section 2.10(1). These matters are addressed in the SEE at p 13 and I am satisfied that the Proposed Development is designed, sited and will be managed, to avoid adverse impacts and in relation to the new stairs located within the foreshore building line pursuant to cl 6.4 of the GRLEP, any impact is minimised and will be managed to mitigate any impact.

28. In accordance with s 2.11 of the Resilience and Hazards SEPP, the parties agree that the Proposed Development has been appropriately designed so as to address the matters set out in s 2.11(1)(a), as addressed in the SEE at p 14, and the Court is satisfied as required by s 2.11(1)(b) of the Resilience and Hazards SEPP.

29. The Court is satisfied to grant consent to the Proposed Development on land within the coastal zone because it is not likely to cause increased risk of coastal hazards on that land or other land (s 2.12, Resilience and Hazards SEPP).

30. Similarly, the Site is identified as being located within the foreshore building line map and the coastal hazards and risk map pursuant to the GRLEP. The amendment to the Proposed Development increases the setback of the balconies at the lower ground floor and associated roof structures to ensure that these elements do not extend beyond the foreshore building line, and the encroachment of the pool edge is in accordance with the terms of cl 6.4(3) of the GRLEP which allows swimming pools within the foreshore area: drawing no. DA4.00 – Lower Ground Floor Plan (Rev D).

31. Regarding consideration of any contamination of the Site as required by s 4.6 of the Resilience and Hazards SEPP, the SEE confirms that the Site has historically been used for residential purposes and continue to be used for residential purposes.

32. On 1 October 2023, the State Environmental Planning Policy (Sustainable Buildings) 2022 came into force and applies to the Site. The Proposed Development is a BASIX affected building that falls within the meaning of a BASIX affected building in accordance with Schedule 7 of the Environmental Planning and Assessment Regulation 2021. The Applicant relies on an updated BASIX Certificate no. A1377214_02.

33. 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 adopt the reasons given by the parties in accordance with this judgment.

34. 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.

Notations:

35. The Court notes:

1. The Respondent, Georges River Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA2023/0566, to include the documents set out below:

1	Schedule of Changes, prepared by Graphio AM	15 November 2024
2	Architectural Plans (Rev D), prepared by Graphio AM • DA1.00 – Site/Key Plan • DA1.01 – Site Analysis Plan • DA1.02 – Construction Management Plan • DA1.03 – Calculations Plan • DA2.00 – Calculations Plan • DA3.00 – Boat Shed & Terrace Plan • DA4.00 – Lower Ground Floor Plan • DA4.01 – Lower Ground Demolition Plan • DA4.02 – Lower Ground Detail Plan • DA5.00 – Ground Floor Plan • DA5.01 – Ground Floor Demolition Plan • DA5.02 – Ground Floor Detail Plan • DA6.00 – First Floor Plan • DA6.01 – First Floor Demolition Plan • DA7.00 – Second Floor Plan • DA7.01 – Second Floor Demolition Plan • DA9.00 – Roof Plan • DA9.01 – Roof Demolition Plan • DA10.00 – Section A-A • DA10.01 – Cut and Fill • DA11.00 – Southern Elevation • DA11.01 – Northern Elevation • DA11.02 – Elevations Cont. • DA12.00 – Shadow Diagrams • DA12.01 – Shadow Diagrams Cont. • DA12.02 – Shadow Diagrams Cont. • DA12.03 – Elevational Shadow Diagrams • DA13.00 – Height Blanket Diagrams	15 November 2024
3	Landscape Plans (Rev E), prepared by HTS Landscape Architects • DA-00 – Cover Page + Drawing Schedule • DA-01 – Landscape Statement & DA Notes • DA-02 – Landscape Schedule & Palette • DA-03 – Landscape Area Calculations • DA-04 – Boatshed & Terrace Plan • DA-05 – Lower Ground Floor • DA-06 – Ground Floor Plan • DA-07 – First Floor Plan • DA-08 – Second Floor Plan • DA-09 – Roof Plan • DA-10 – Rear Landscape Indicative Render	16 November 2024
4	BASIX Certificate no. A1377214_02	3 December 2024
5	Clause 4.6 Request, prepared by Chapman Planning Pty Ltd	25 October 2024

Orders:

36. The Court orders:

1. The appeal is upheld.

2. The Applicant’s written request, prepared by Chapman Planning Pty Ltd dated 25 October 2024, made pursuant to cl 4.6 of the Georges River Local Environmental Plan 2021, to vary the building height development standard in cl 4.3 of the Georges River Local Environmental Plan 2021, is upheld.

3. Development Application No. DA2023/0566, as amended, for partial demolition of an existing dwelling house, alterations and additions to the dwelling house, including the construction of an additional level, installation of a swimming pool and associated landscaping at 103 Kyle Parade, Kyle Bay, is determined by the grant of consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 20 December 2024