Land and Environment Court New South Wales Medium Neutral Citation: Archispectrum Pty Ltd v Georges River Council [2024] NSWLEC 1667 Hearing dates: Conciliation conference on 3 September 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of seven thousand dollars ($7,000.00). (2) The appeal is upheld. (3) Development Application DA2023/0361, as amended, for the Torrens title subdivision of an existing allotment into two lots and the demolition of the existing garage on land identified as Lot B DP 331796, known as 70 Kyle Parade, Kyle Bay, is determined by the granting of consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Georges River Local Environmental Plan 2021, cll 2.6, 4.1, 6.1, 6.3, 6.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Archispectrum Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: P Rigg (Solicitor) (Applicant) L Melvin (Solicitor) (Respondent) Solicitors: Peter R Rigg (Applicant) Georges River Council (Respondent) File Number(s): 2024/99588 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Georges River Council, of Development Application DA2023/0361 which seeks consent for the Torrens title subdivision of land from one lot into two lots at Lot B DP331796, known as 70 Kyle Parade, Kyle Bay. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 September 2024. I presided over the conciliation conference. 4. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application. These amendments included modifications to the building envelope and subdivision layout, the provision of additional information to support the application, and the inclusion of the demolition of the existing garage in the application. 6. 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. 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, which the parties identified and explained and from this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified from 12 to 26 November 2024. During this period, one submission was received in support of the application. 3. The subject site is zoned R2 Low Density Residential under the Georges River Local Environmental Plan 2021 (GRLEP), within which, pursuant to cl 2.6, subdivision is permissible with consent. Demolition is permissible with consent, as is requested in this application, pursuant to GRLEP cl 2.7. The proposed development is consistent with the objectives of this zone. 4. GRLEP cl 4.1 establishes a minimum subdivision lot size for this site of no less than 450m2, which the proposed lots comply with as evidenced in the Subdivision Plan revision C by Archispectrum Pty Ltd, dated 26 September 2024 (the Subdivision Plan). 5. Pursuant to GRLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. The physical works for this development only include demolition of an existing garage, which the parties submit and I accept are not likely to impact the water table. Accordingly, an acid sulfate soils management plan is not required and the proposed development meets the requirements of cl 6.1. 6. From the parties' submission and the Stormwater Management drawings, revision C, by Hydracor Consulting Engineers dated 26 September 2024 (the Stormwater Management drawings), I accept that the proposed development satisfies the stormwater management provisions of GRLEP cl 6.3. 7. GRLEP cl 6.9 requires that development consent must not be granted unless the consent authority is satisfied that all essential services are available or that adequate arrangements have been made to make them available. Based on the parties' submission, the agreed conditions of consent, the Stormwater Management drawings and the Subdivision Plan, I accept that adequate arrangements are in place to make all essential services available as per cl 6.9. 8. The site features an existing mature Norfolk Island Pine. Based on the parties' submission, the Arboricultural Impact Assessment and the Tree Protection Plan and Specification, both by CPS dated 25 September 2024, I accept that the proposed development does not offend the requirements of Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. 9. 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. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended use. Conclusion 1. 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, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes: 1. George's River Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 to the applicant amending the development application to rely on the following documents: Drawing Title Sheet No. Revision Dated Architectural Plans prepared by Archispectrum Pty Ltd Demolition of Existing Garage on Existing Lot and Indicative Building Footprint DA01 C 26/09/24 Subdivision Plan DA02 C 26/09/24 Indicative Building Envelope DA03 C 26/09/24 Proposed Ground Floor Plan - Lot A DA04 C 26/09/24 Proposed Ground Floor Plan - Lot B DA05 C 26/09/24 Proposed First Floor Plan DA06 C 26/09/24 Site and Roof Plan DA07 C 26/09/24 East and West Elevation DA08 C 26/09/24 North and South Elevation DA09 C 26/09/24 Section A-A DA10 C 26/09/24 Shadow Diagram – Winter Solstice 9am DA11 C 26/09/24 Shadow Diagram – Winter Solstice 11:30am DA12 C 26/09/24 Shadow Diagram – Winter Solstice 12pm DA13 C 26/09/24 Shadow Diagram – Winter Solstice 12:30pm DA14 C 26/09/24 Shadow Diagram – Winter Solstice 1pm DA15 C 26/09/24 Shadow Diagram – Winter Solstice 1:30pm DA16 C 26/09/24 Shadow Diagram – Winter Solstice 2pm DA17 C 26/09/24 Shadow Diagram – Winter Solstice 2:30pm DA18 C 26/09/24 Shadow Diagram – Winter Solstice 2:45pm DA19 C 26/09/24 Shadow Diagram – Winter Solstice 3pm DA20 C 26/09/24 Area Calculations DA21 C 26/09/24 Landscape Plan DA22 C 26/09/24 Cut and Fill Plan DA23 C 26/09/24 External Finishes DA24 C 26/09/24 Stormwater Management Plan prepared by Hydracor Consultant Engineers Pty Ltd Cover Sheet & Notes C1 C 26/09/24 Stormwater Management Plan C2 C 26/09/24 Stormwater Management Details – Sheet 1 C3 C 26/09/24 Erosion and Sediment Control Plan C4 C 26/09/24 Erosion and Sediment Control Notes & Details C5 C 26/09/24 Interallotment Drainage Long Section C6 C 26/09/24 Documents Tree Protection Plan and Specification, Rev B 25/09/2024 Arboricultural Impact Assessment 25/09/2024 1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of seven thousand dollars ($7,000.00). 2. The appeal is upheld. 3. Development Application DA2023/0361, as amended, for the Torrens title subdivision of an existing allotment into two lots and the demolition of the existing garage on land identified as Lot B DP 331796, known as 70 Kyle Parade, Kyle Bay, is determined by the granting of consent subject to the conditions in Annexure A. E Washington Commissioner of the Court ********** Annexure A 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: 23 October 2024