Land and Environment Court New South Wales Medium Neutral Citation: Gemaveld Pty Limited v Georges River Council [2022] NSWLEC 1182 Hearing dates: Conciliation conference on 18 February 2022, 14 March 2022 and 28 March 2022 Date of orders: 07 April 2022 Decision date: 07 April 2022 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No DA 2020/0247, as amended, for demolition works, construction of a multi level dwelling house, swimming pool, front fence, landscaping and site works on Lot B DP 33563 known as 117 Stuart Street Blakehurst, is determined by the grant of consent, subject to conditions set out in Annexure 'B'. Catchwords: DEVELOPMENT APPLICATION – dwelling house in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Georges River Local Environmental Plan 2021, cl 1.8A Kogarah Local Environmental Plan 2012, cll 4.3, 5.21, 6.1, 6.2, Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience & Hazards) 2021, cll 2.4, 2.12, 2.13 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cll 11.6, 11.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Gemaveld Pty Limited (Applicant) Georges River Council (Respondent) Representation: Counsel: S Berveling (Applicant) R O'Gorman-Hughes (Respondent) Solicitors: Salim Rutherford Lawyers (Applicant) Georges River Council (Respondent) File Number(s): 2021/293258 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 Appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by the Georges River Local Planning Panel on behalf of Georges River Council (the Respondent) of Development Application DA2020/0247 seeking consent for demolition works, tree removal, and construction of a multi-level dwelling house, swimming pool, front fence, landscaping and site works at 117 Stuart Street, Blakehurst (the site). 2. On 18 February 2022, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to the resolution of certain issues which the parties' advised me were capable of resolution. I adjourned the conference to allow the parties to continue to resolve those matters. 4. On 14 and 28 March 2022, I further adjourned the conciliation conference to permit the parties to finalise the terms of the agreement that was filed with the Court on 29 March 2022, in accordance with s 34(10) of the LEC Act. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 1. While the subject site is located within the C4 – Environmental Living zone under the Georges River Local Environmental Plan 2021 (GRLEP), cl 1.8A of the GRLEP requires the development application, lodged prior to the commencement of the GRLEP, to be determined as if the GRLEP had not commenced. Instead, the provisions of the Kogarah Local Environmental Plan 2012 (KLEP) apply. 2. The site is within the R2 Low Density Residential zone under the KLEP, in which dwelling house development is permitted with consent, and where consistent with the following objectives: • 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. 1. The proposed development complies with the height of building standard of 9m at cl 4.3 of the KLEP. 2. The site is not identified as flood prone (cl 5.21)), and is not identified on the Acid Sulfate Soils Map (cl 6.1(2)) of the KLEP. 3. On the basis of the Stormwater Concept Plan prepared by Scott Collis Consulting, and the Geotechnical Report prepared by Fortify Geotech Pty Ltd dated 24 March 2022, I have considered earthworks for which development consent is required, and I conclude the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, based on those matters at cl 6.2(3) of the KLEP. 4. The site is identified, at cl 2.4 of the State Environmental Planning Policy (Resilience & Hazards) 2021 (Resilience SEPP) as being within the Coastal Environment Area. 5. On the basis of the substantial setback of the proposed development from the shoreline of the Georges River, I am satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, pursuant to cl 2.12 of the Resilience SEPP, and I note there is no coastal management program applicable to the site, that is the subject of consideration required by cl 2.13. 6. Clause 4.6 of the Resilience SEPP requires consideration of a report specifying the findings of a preliminary investigation of the land where a change of use is proposed. I accept that no change of use is proposed, and the Statement of Environmental Effects cites aerial imagery from 1945 to support the continued residential use of the site. 7. The subject site is within the Georges River Catchment, to which Chapter 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies, and I have taken into account those matters at cll 11.6 and 11.7. 8. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1102034S_03, dated 16 March 2022) prepared by EPS in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation). Conclusion 1. 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. 2. 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. Orders 1. The Court notes that: 1. Georges River Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA 2020/2047 the subject of these proceedings as shown in the amended plans and documents set out in Annexure 'A'. 2. The amended application was lodged on the NSW Planning Portal on 28 March 2022. 3. On 28 March 2022, the Applicant filed with the Court a copy of the amended application. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No DA 2020/0247, as amended, for demolition works, construction of a multi level dwelling house, swimming pool, front fence, landscaping and site works on Lot B DP 33563 known as 117 Stuart Street Blakehurst, is determined by the grant of consent, subject to conditions set out in Annexure 'B'. …………………… T Horton Commissioner of the Court ********** Annexure A.pdf Annexure B.pdf DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2022