El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25

Supreme Court New South Wales

Medium Neutral Citation: El Khouri & Anor v Gemaveld Pty Ltd & Ors [2023] NSWSC 25 Hearing dates: 28 November and 15 December 2022 Decision date: 02 February 2023 Jurisdiction: Equity Before: White J Decision: I answer the questions remitted as follows: (1) Q: For the purposes of clause 4.3(2) of the Kogarah LEP, does the proposed dwelling house approved by the Consent exceed the maximum building height shown for the Site on the relevant height of buildings map in that instrument? A: Yes, but this did not appear from the plans submitted to the consent authority. (2) Q: If the answer to question 1 is yes, did the First and Second Applicants excavate the Site prior to 7 April 2022 in the portion of the Site that is in breach of the height of buildings development standard for the purposes of question 1, and if so, to what extent? A: No. (3) Q: For the purposes of the notification of the DA, was a written notice forwarded to the Third Applicant within the meaning of the Georges River Council – Community Engagement Strategy 2018 – 2028 prior to 7 April 2022? A: Unnecessary to answer. (4) Q: If the answer to (3) is no, having regard to the environmental impacts of the proposed development on the applicants was any denial of procedural fairness material? A: Does not arise. Catchwords: ENVIRONMENT AND PLANNING – judicial review of decision to grant development consent to respondent for erection of new dwelling-house and associated structures – development consent granted to respondent by a Commissioner of the Land and Environment Court on a consent basis without intervention by applicants – where applicants contend that the Land and Environment Court as consent authority had no jurisdiction to grant consent because height limit was exceeded and there was no application to vary the standard as required by the Local Environmental Plan – factual questions arising on summons for judicial review remitted to Equity Division for determination - where the parties dispute the method of calculating the height of a dwelling-house in accordance with cl 4.3 of the Kogarah Local Environmental Plan 2012 – where respondent alleges that applicants excavated parts of the site said to contravene height limit – held that the proposed building exceeds maximum building height, though that is not apparent from the plans submitted to the consent authority – held that applicants did not excavate relevant parts of respondent's land – unnecessary to answer other questions Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW), s 34(3) Supreme Court Act 1970 (NSW), ss 46, 51(4) Environmental Planning and Assessment Regulation 2000 (NSW) Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137 Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWSC 867 Gemaveld Pty Ltd v Georges River Council [2022] NSWLEC 1182 Young v King [2016] NSWCA 282 Category: Procedural rulings Parties: Peter John El Khouri (First Applicant) Goumana Therese El Khouri (Second Applicant) Effi Theodorakopoulos (Third Applicant) Gemaveld Pty Ltd (First Respondent) Land and Environment Court (Second Respondent) Georges River Council (Third Respondent) Representation: Counsel: J Lazarus SC with J Farrell (Applicants) C Leggat SC with S Berveling and C Koikas (First Respondent) Submitting appearance (Second Respondent) R M O'Gorman-Hughes (Third Respondent)