Eskander v Georges River Council [2024] NSWLEC 1006

Eskander v Georges River Council [2024] NSWLEC 1006

The proposed development was permissible as a detached dual occupancy and the basement artwork storage did not amount to a prohibited art gallery because the application and plans were for residential storage and there was no evidence of visitors or an information and education facility. Adequate arrangements had been made for suitable vehicular access to dwelling 2 because Lot 8 physically provided suitable access, an easement process had commenced, and no legal impediment to an easement was shown, so a deferred commencement condition requiring the easement was appropriate. The arboricultural evidence established that Trees 5, 6 and 12 would remain viable and that landscaping...

Jurisdiction
Australia
Judgment Date
16 January 2024
Procedural Posture
Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Final Hearing After Conciliation Conference; Principal Judgment Determining the Appeal
Outcome
The appeal was upheld and development application DA2022/0387 was determined by the grant of consent subject to conditions in Annexure A.
Legal Topics
['detached Dual Occupancy' 'permissibility of Use' 'essential Services and Suitable Vehicular Access' 'deferred Commencement Condition Requiring Easement' 'tree Protection and Arboricultural Impacts' 'landscaping' 'basement Excavation' 'development Control Plan Non Compliance']
['planning and Environment' 'development Consent' 'local Government' 'roads and Access'] ['detached Dual Occupancy' 'permissibility of Use' 'essential Services and Suitable Vehicular Access' 'deferred Commencement Condition Requiring Easement' 'tree Protection and Arboricultural Impacts' 'landscaping' 'basement Excavation' 'development Control Plan Non Compliance']

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Final Hearing After Conciliation Conference; Principal Judgment Determining the Appeal

Legal Issues

  1. 1 ['Whether the proposed basement artwork storage area made the development an information and education facility or art gallery prohibited in the R2 Low Density Residential zone.' 'Whether adequate arrangements had been made to make suitable vehicular access to dwelling 2 available when required, given access required use of Lot 8 and no easement was yet in place.' 'Whether the proposed development would adversely impact Trees 5, 6 and 12 or otherwise fail landscaping requirements.' 'Whether the size of the basement and extent of excavation warranted refusal despite non-compliance with the Georges River Development Control Plan 2021.' 'Whether conditions of consent should include disputed deferred commencement and operational requirements concerning geotechnical, stormwater, tree planting and balcony setback matters.']

Ratio Decidendi

The proposed development was permissible as a detached dual occupancy and the basement artwork storage did not amount to a prohibited art gallery because the application and plans were for residential storage and there was no evidence of visitors or an information and education facility. Adequate arrangements had been made for suitable vehicular access to dwelling 2 because Lot 8 physically provided suitable access, an easement process had commenced, and no legal impediment to an easement was shown, so a deferred commencement condition requiring the easement was appropriate. The arboricultural evidence established that Trees 5, 6 and 12 would remain viable and that landscaping...

Court Disposition

The appeal was upheld and development application DA2022/0387 was determined by the grant of consent subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development application (DA2022/0387) for the demolition of an existing dwelling and the construction of detached dual occupancy with two levels of basement, swimming pool, landscaping, fencing and associated site works, at 12 Ogilvy Street, Peakhurst, is determined by the grant of consent...