NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR AL ABRAHIM V/S GEORGES RIVER COUNCIL CASE

Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 1:

1. COMMISSIONER: This appeal concerns a development application for the demolition of an existing house and the construction of an attached dual occupancy with basement garage, and Torrens title subdivision, at 10 Dalkeith Street, Sans Souci. The development application was lodged with Georges River Council on 27 September 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 26 June 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on the same date, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include a reduction in overall height, the introduction of privacy measures to prevent overlooking and increased landscaping.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A and [Error! Reference source not found.] below. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

* The development works are for the purposes of a dual occupancy, which is a permissible use in the R4 High Density Residential zone in which the site is located, pursuant to the Georges River Local Environmental Plan 2021 (GRLEP).

* The proposed development complies with the applicable development standards that apply pursuant to the GRLEP, including minimum subdivision lot size for dual occupancies (cl 4.1A), minimum lot size and width for dual occupancy developments (cl 4.1B), maximum height of building (cl 4.3), floor space ratio (cl 4.4A(4)) and landscaped area (cl 6.12(5)(f)).

* The development is located adjacent to a local heritage items and the effect of the development on the heritage significance of the heritage items has been considered. The development application was accompanied by a Statement of Heritage Impact dated 2 September 2024, and nothing arises from cl 5.10 of the GRLEP that precludes the grant of consent.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197bdee425991e799322148b)

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