868 Architects Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1182

Land and Environment Court

New South Wales

Medium Neutral Citation:

868 Architects Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1182

Hearing dates:

Conciliation conference on 8 April 2024

Date of orders:

16 April 2024

Decision date:

16 April 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Development Application No DA23/0115, for the demolition of existing structures and the construction of a new dwelling, swimming pool and associated landscaping at 104 Lilli Pilli Point Road, Lilli Pilli, is determined by the grant of development consent subject to the conditions set out in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), s 4.6
Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.6, 5.10, 6.2, 6.4, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

868 Architects Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
D Loether (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/282881

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by 868 Architects Pty Ltd (the Applicant) against the deemed refusal of Development Application No DA23/0115, by Sutherland Shire Council (the Respondent). The Development Application, lodged on 23 February 2023, seeks the demolition of an existing dwelling and construction of a new dwelling and swimming pool and associated landscaping at 104 Lilli Pilli Point Road, Lilli Pilli (Site).

2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 8 April 2024.

3. The parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned C3 Environmental Management wherein the proposed development is permitted with development consent. Regard has been given to the objectives of the zone in determining the Development Application.

2. The proposed development does not comply with the maximum building height pursuant to cl 4.3 of SSLEP 2015 – Height of Buildings (HoB). The Applicant has provided a written request, pursuant to cl 4.6 of SSLEP 2015, that sets out the reasons for seeking a variation to the Development Standard including assessment against the relevant objectives in the SSLEP 2015, the environmental grounds for the written request and the public interest. A height blanket diagram has been prepared to accompany the development application (Architectural Plans prepared by 868 Architects Sheet Number 33 Revision 4 dated 15 March 2024).

3. The parties have considered the written request and agree that:

1. The proposed upper floor is above the maximum height limit by a maximum of 937mm. The existing dwelling has a height of 10.828m and is 2.328m above the HoB standard of 8.5m. The parties’ experts agree that the proposed height, despite the variation, is below the height of the existing dwelling;

2. The written request outlines how the proposal meets the objectives of the zone and the parties are satisfied that the proposal has achieved this outcome;

3. The written request outlines how the objectives that underpin the HoB development standard have been met by the proposal. The parties agree that the development application, as amended, does not result in adverse shadowing or view loss impacts arising from the height variation; and,

4. As a result of the assessment of the various parameters, the parties agree that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

4. As a result of the above outcomes, and on review of the written request, I am satisfied that the decision by the parties to uphold the written request to vary the HoB development standard is a decision that the Court could have made.

5. The requirements of cl 5.10 – Heritage Conservation of the SSLEP 2015 have been considered. The site does not contain, or adjoin, any heritage items and is not located within a heritage conservation area. The site is not identified as a site of archaeological or aboriginal heritage significance, and the parties agree that it is unlikely that the site contains any aboriginal objects.

6. The requirements of cl 6.2 of SSLEP 2015 have been met, in respect to Earthworks, as the consent authority has considered the matters in cl 6.2(3). The parties have considered the Geotechnical Report prepared by AE Consulting Engineers dated 4 December 2023 amongst other documentation supplied by the Applicant. The parties agree that the development application, as amended, proposes excavation works that minimise disruption on drainage patterns and soil stability, do not affect the future use or redevelopment of land, minimise impacts on waterways and minimise impacts on the amenity of adjoining properties.

7. The parties note that the site has a significant fall from the Lilli Pilli Point Road boundary to the rear boundary of 13m. It also has both a cross fall and a fall from the western property boundary to the street. The parties agree that the development application, as amended, permits appropriate access and car parking and allows future residents to egress the site in a forward direction. They agree that the earthworks are not unreasonable and that the works respond to the Site’s topography. The parties agree that the Applicant has adequately addressed the required matters pursuant to cl 6.2(3) of the SSLEP.

8. The requirements of cl 6.4 of SSLEP 2015 in respect to Stormwater Management, that require the consent authority to consider various matters, have been met. The development application, as amended, is accompanied by revised Stormwater Drainage Concept Plans. It is agreed between the parties that the application now satisfactorily addresses cl 6.4 SSLEP 2015 on the basis that the Applicant will obtain an easement over the downstream property at 2 Bareena Street. The Applicant has obtained consent of the registered proprietor of 2 Bareena Street for the easement to drain water. The parties have agreed appropriate conditions, provided in Annexure B, to ensure that the required outcomes are met.

9. The requirements of cl 6.14 – Landscaped Areas have been considered. The Development Standard requires a minimum of 40% of the total site area to be landscaped and the proposal meets this requirement. The amended material, which further supported the parties’ agreement, included an Arboricultural Impact Assessment Report prepared by Rennie Bros Tree Surgeons dated 22 February 2024.

10. The requirements of cll 6.16 and 6.17 – Urban Design General and Residential Accommodation have been considered and the parties agree that the proposed outcomes, in the amended Development Application, satisfy these requirements. The proposed design enhances and integrates into the locality, contributes to the future character, minimises adverse impacts on privacy to neighbouring properties, and provides a well-designed landscaping solution.

11. The Development Application was placed on public exhibition. The parties are satisfied that the matters raised in the two submissions have been adequately considered, and where appropriate, addressed in the amended application the subject to this agreement and the conditions in the Development Consent forming Annexure B.

12. A BASIX Certificate (No 1364701S_05 issued 8 April 2024) has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

13. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Statement of Environmental Effects assesses the potential for contamination and concludes that, given the current residential use of the site, the risk is low. As a result, the parties agree that contamination is unlikely and that the requirements under s 4.6 of the Resilience and Hazards SEPP have been met.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

7. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusions

8. The Court notes:

1. That Sutherland Shire Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No DA23/0115 to rely on the documents listed in Annexure A to this judgment.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No DA23/0115, for the demolition of existing structures and the construction of a new dwelling, swimming pool and associated landscaping at 104 Lilli Pilli Point Road, Lilli Pilli, is determined by the grant of development consent subject to the conditions set out in Annexure B.

Stuart Harding

Acting Commissioner of the Court

Annexure A

Annexure B 

**********

Decision last updated: 16 April 2024