A recent decision in the Land and Environment Court offers important lessons for homeowners navigating council opposition to development applications. In Robinson v Georges River Council, the Court granted approval for a three-storey home despite council's firm stance that the area was strictly "two storeys only." Here's what happened, and why it matters for your own project.
The Proposal in Brief
The homeowner sought approval to renovate and extend their existing dwelling at 19 Salt Pan Road, Peakhurst. The plans included a new first floor, swimming pool and cabana on a large 1,391m² block backing onto Salt Pan Creek.
The original application also proposed a two-lot subdivision, but this was abandoned during the process.
The Council's Objection
Georges River Council refused to support the application, arguing that:
The three-storey design breached the two-storey limit in the Georges River Development Control Plan 2021
The extra storey created unacceptable bulk, scale and visual impact
The development would overshadow neighbouring townhouses
The Homeowner's Argument
The applicant didn't dispute that the proposal was technically three storeys. Instead, they argued that:
The building complied with the statutory height limit of 9m
It was well under the floor space ratio controls
A two-storey dwelling could achieve the same overall height and mass – just configured differently
The "two storey" rule was, in effect, arbitrary when the physical envelope was compliant
What the Court Found
Commissioner Horton agreed with the homeowner. The key takeaways from the judgment were:
1. Storeys ≠ Bulk and Scale
The Court accepted that the number of storeys does not determine whether a building is too bulky. A two-storey home with high ceilings and a basement can be just as tall and visually prominent as a three-storey home. What matters is the actual height, setbacks and mass – all of which were compliant here.
2. Overshadowing Was Minimal
The overshadowing concerns were focused on a small, ancillary outdoor area of a neighbouring townhouse. The primary private open space received over three hours of sunlight, meeting the relevant controls. The Court found that the upper level contributed little to any overshadowing impact.
3. "Seeing" the Building Is Not Enough
Council argued the upper level could be "seen" from neighbouring properties. The Court noted that visibility alone does not justify refusal – particularly where the building otherwise complies with height and setback controls.
4. Flexibility Is Built Into the Controls
The Georges River Development Control Plan acknowledges the "eclectic" character of Peakhurst. The Court observed that strict adherence to a two-storey rule was not necessary where the outcome otherwise met planning objectives.
Other Issues Resolved
The Court also confirmed that the proposal satisfactorily addressed:
Flooding constraints
Riparian land and biodiversity impacts
BASIX and stormwater requirements
Tree preservation and landscaping
The Outcome
The appeal was upheld. Development consent was granted subject to conditions.
What This Means for Homeowners
This case demonstrates that development control plans are not rigid statutes. Councils will often treat numerical controls (like "two storeys") as firm rules. However, the Court is willing to look at the substance of the proposal – does it fit within the height limit? Does it unreasonably impact neighbours? Is it consistent with the character of the area?
If your project exceeds a DCP control but complies with the underlying LEP standards and causes no unreasonable impacts, you may have good grounds to persist – even if council initially says no.
Need Advice?
If you're facing council opposition to a residential development application, contact our team. We can appear in the Land and Environment Court and can advise whether your proposal is likely to succeed on appeal.
Robinson v Georges River Council
