Zaarour v Georges River Council

[2021] NSWLEC 1478

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zaarour v Georges River Council [2021] NSWLEC 1478

Hearing dates:

Conciliation conference on 13 August 2021

Date of orders:

23 August 2021

Decision date:

23 August 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA2020/0435 lodged on 10 November 2020, as amended, to demolish the existing dwelling and ancillary structures and the construction of a dual occupancy over basement parking at 10 Kyle Parade, Kyle Bay is approved subject to the conditions in Annexure A to this Agreement.

(3) Each party to pay its own costs of the proceedings.

Catchwords:

DEVELOPMENT APPEAL – residential – dual occupancy – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Kogarah Local Environmental Plan 2012, cl 4.1B, 4.3, 4.4A, 6.1, 6.2

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, Schedule 1

State Environmental Planning Policy (Infrastructure) 2007, cl 45

State Environmental Planning Policy No 55–Remediation of Land, cl 7

Texts Cited:

Georges River Council, Community Engagement Strategy

Category:

Principal judgment

Parties:

Christopher Zaarour (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
G Christmas (Solicitor) (Applicant)
J Ware (Solicitor) (Respondent)

Solicitors:
Apex Planning and Environmental Law (Applicant)
Georges River Council (Respondent)

File Number(s):

2021/44244

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against the deemed refusal of a residential development application No. DA2020/0435 lodged on 10 November 2020, as amended, to demolish the existing dwelling and ancillary structures and the construction of a dual occupancy over basement parking (the Proposed Development) at 10 Kyle Parade, Kyle Bay legally described as Lot 5 DP 16914 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on Friday 13 August 2021. I have 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. 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 and the parties explained how the jurisdictional prerequisites have been satisfied as follows:

1. The Development Application has been made with the consent in writing of the two owners of the land.

2. The Development Application was notified from 26 November 2020 for a period of 14 days. Two (2) written submissions were received by the Council.

3. The Development Application was referred to Ausgrid on 13 November 2020. On 7 December 2020, Ausgrid advised the Council that it had no objection with respect the proposal.

1. I am satisfied that cl 45(2) of the State Environmental Planning Policy (Infrastructure) 2007 has been complied with.

4. The submissions received to the Development Application have been considered by the Respondent Council pursuant to section 4.15(1)(d) of the EPA Act.

5. Amended plans were provided to the Council on 4 June 2021 (“the Amended Plans”) to address the issues raised in the Council’s Statement of Facts and Contentions filed on 25 March 2021. The Court granted leave to the Applicant to rely on the Amended Plans on 9 June 2021.

6. The Amended Plans were not required to re-notified pursuant to the provisions of the Council’s adopted Community Engagement Strategy (page 42 relating to Land and Environment Court proceedings).

7. The proposed development as amended is considered to be consistent with the zone objectives and the Respondent Council has had regard to the objectives for development in the R2 zone in making that determination.

8. The proposed development as amended complies with the applicable development standards in the Kogarah Local Environmental Plan 2012 (LEP) for minimum lot size for dual occupancies (cl 4.1B); maximum building height (cl 4.3) and maximum floor space ratio (cl 4.4A).

9. The Respondent Council has been provided with a preliminary Acid Sulfate Soils Assessment pursuant to cl 6.1(4) of the LEP and is satisfied that an acid sulfate soils management plan is not required for the works.

10. The consent authority is required to consider certain matters in relation to any earthworks pursuant to cl 6.2 of the LEP. Those matters have been considered and the proposed conditions of consent include conditions controlling excavation and erosion and protection measures for the existing trees on the site.

11. Consideration has been given as to whether the Site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use only for residential purposes, it is unlikely to be contaminated.

12. The Development Application is accompanied by a multi-dwelling BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (see also condition 74 of the conditions of consent which requires compliance with the Certificate).

6. 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 and I accept and adopt the reasons provided by the parties and accept that having satisfied myself that dual occupancies are permissible with consent in the R2 Zone pursuant to the LEP.

7. 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.

8. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2020/0435 lodged on 10 November 2020, as amended, to demolish the existing dwelling and ancillary structures and the construction of a dual occupancy over basement parking at 10 Kyle Parade, Kyle Bay is approved subject to the conditions in Annexure A to this Agreement.

3. Each party to pay its own costs of the proceedings.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (299002, pdf)

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Decision last updated: 23 August 2021