Yealland v Georges River Council

[2025] NSWLEC 1660

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yealland v Georges River Council [2025] NSWLEC 1660

Hearing dates:

Conciliation conference on 2 September 2025

Date of orders:

10 September 2025

Decision date:

10 September 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA2025/0158, as amended, for demolition of existing structures, removal of 2 trees, construction of an attached dual occupancy and Torrens title subdivision at 3 Barcoo Street, Peakhurst Heights, is determined by the grant of consent subject to the conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.55, 8.7,

Land and Environment Court Act 1979 (NSW), ss 34, 34AA

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

Georges River Local Environmental Plan 2021, cll 4.1A, 4.1B, 4.3, 4.4A, 6.1, 6.2, 6.3, 6.9, 6.12

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022 s 2.1

Category:

Principal judgment

Parties:

Darren Yealland (First Applicant)
Hadi Heiral (Second Applicant)

Georges River Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
A Hannam (Respondent)

Solicitors:
Mills Oakley (Applicant)
Georges River Council (Respondent)

File Number(s):

2025/195539

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Georges River Council, of Development Application DA2025/0158 which seeks consent for the demolition of existing structures, removal of two trees, construction of an attached dual occupancy and Torrens title subdivision at 3 Barcoo Street, Peakhurst Heights, legally known as Lot 26 in DP 209573.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 2 September 2024. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

5. 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. Accordingly, there are jurisdictional prerequisites that must be satisfied before the function under s 4.55 of the EPA Act can be exercised, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

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

7. The application was adequately notified from 24 April to 15 May 2025. Two submissions were received: one of objection and one of support. Neither resident made oral submissions at the commencement of proceedings, and I accept the parties’ submission that the development, as amended, adequately responds to these submissions.

8. A BASIX certificate has been provided that relates to the development as amended, and quantifies the embodied emissions attributable to the development pursuant to the requirements of State Environmental Planning Policy (Sustainable Buildings) 2022 s 2.1.

9. The site is located within the Georges River Catchment and therefore Pt 6.2 of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. From the parties’ submission and the information in the amended application, I accept that the requirements of Ch 6 of SEPP B&C relating to water quality and quantity (s 6.6) and aquatic ecology (s 6.7) are met with the proposed development. I further accept that the proposed development is not identified as being within a flood planning area (s 6.8) 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).

10. 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. From the parties’ submission and the Statement of Environmental Effects by Avenue Town Planning Pty Ltd dated 16 March 2025 (the SEE), I accept that the subject site has historically been used for residential purposes and there is no record of any contamination or contaminating activity on site. Accordingly, I accept that in terms of contamination, the site is suitable for the intended, continued residential use.

11. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purpose of dual occupancies is permissible with consent. The proposed development is consistent with the objectives of this zone.

12. GRLEP cl 4.1A sets a minimum lot size for dual occupancies of 300m². The proposed lot sizes are 351.31m² and 356.68m² for Lots A and B respectively, complying with this minimum lot size requirement.

13. Development consent must also not be granted for dual occupancies on land within the R2 Low Residential zone unless the lot is greater than 650m² in area, and the width of the lot at the front of the building line is equal or greater than 15m. The total area of the subject lot is 708.2m², and the width of the lot at the building line is 15m, complying with GRLEP cl 4.1B.

14. As demonstrated by the architectural plans in the amended application, the proposed development complies with the maximum building height of 9m set under GRLEP cl 4.3, and the maximum floor space ratio (FSR) for the site of 0.6:1 set under GRLEP cl 4.4A.

15. Pursuant to GRLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. From the parties’ submission, and the SEE, I accept that the proposed works are not likely to lower the water table below 1 metre Australian Height Datum, and that an acid sulfate soils management plan is not required.

16. The proposed development includes minimal excavation. From the SEE and the parties’ submission, I accept that the matters listed in GRLEP cl 6.2 have been considered, and the proposed earthworks are acceptable.

17. From the parties’ submission and the amended stormwater plans by C.K. Engineering Services, I accept that the stormwater management requirements of GRLEP cl 6.3 are met with the proposed development.

18. Based on the above consideration of stormwater management, the amended architectural plans, the SEE and the parties’ submission, I further accept that adequate arrangements are in place to provide the essential services listed in GRLEP cl 6.9.

19. Finally, the amended architectural plans demonstrate that the proposed landscaped area is 51% of the total site area, complying with the 25% minimum set under GRLEP cl 6.12.

Conclusion

20. 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

21. The Court notes:

1. The respondent, Georges River Council, as the relevant consent authority, has approved, under s 38 of the EPA Regulation, the applicant’s amendment of Development Application No. DA2025/0158, to include the documents in Annexure A (‘Amended Application’).

2. The applicant filed the Amended Application on 2 September 2025.

22. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2025/0158, as amended, for demolition of existing structures, removal of 2 trees, construction of an attached dual occupancy and Torrens title subdivision at 3 Barcoo Street, Peakhurst Heights, is determined by the grant of consent subject to the conditions at Annexure B.

E Washington

Commissioner of the Court

Annexure A (154 KB, pdf)

Annexure B (343 KB, pdf)

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Decision last updated: 10 September 2025