Alcorp Builders Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation:

Alcorp Builders Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1208

Hearing dates:

Conciliation conference 4 April 2024

Date of orders:

23 April 2024

Decision date:

23 April 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application in the agreed final sum of $20,000.00 to be paid within 28 days of these orders.

(2) The appeal is upheld.

(3) Development application number DA22/1154, as amended, for the demolition of existing structures and construction of a residential flat building on land identified as Lot 17 in Deposited Plan 14633 and Lot 18 in Deposited Plan 14633 and known as 32-34 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of a residential flat building – amended plans and additional information – agreement between the parties – orders made

Legislation Cited:

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 2.2, s 2.10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Ch 4, ss 145, 147

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 6.2, 6.4

Texts Cited:

Apartment Design Guide 2015

Category:

Principal judgment

Parties:

Alcorp Builders Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Bartier Perry (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/151336

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to subs 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA22/1154. The development application seeks consent for the demolition of existing structures and construction of a residential flat building. The development is proposed at 32-34 Waratah Road, Engadine (Lot 17 Deposited Plan 14633 and Lot 18 in Deposited Plan 14633).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 4 August 2023. The conciliation conference was adjourned to allow the parties to continue discussions, but was ultimately terminated on 6 October 2023.

3. The Proposal, as amended, seeks consent for:

1. A total of 32 residential units (10 x 1-bedroom units, 15 x 2-bedroom units and 7 x 3-bedroom units);

2. A total gross floor area of 2723.94sqm;

3. Six levels of residential accommodation;

4. Basement parking for 34 cars over two levels;

5. Associated site works including landscaping.

4. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the grant of consent to the application, as amended, subject to conditions. On 4 April 2024, the day the matter was listed for hearing, the parties advised the Court of their agreement and the proceedings were listed for a further conciliation conference. I presided over the further conciliation conference.

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). I form this state of satisfaction on the basis that:

1. The development application was made with the written consent of the registered proprietors of the two lots which comprise the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. The development application involves the removal of existing vegetation on the site. Part 2.2 ‘Clearing of vegetation in non-rural areas’ of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. In granting consent to the development application, I have considered the matters at s 2.10 of the SEPP BC. The parties agree, and I accept, that I can be satisfied that:

1. The amended development application is acceptable,

2. The annexed conditions require the protection of nominated trees and appropriately grant consent for the removal and replacement of others.

3. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. An updated BASIX certificate has been provided as part of the amended development application.

4. As the development is a ‘residential apartment development’, Ch 4 ‘Design of Residential Apartment Development’ of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies. As required by s 145 of SEPP Housing, the Respondent did constitute a design review panel who provided advice in relation to the original development application.

5. As required by subs 147(1) SEPP Housing in determining the development application, I have considered the quality of the design of the development as evaluated against: firstly, the design principles in Sch 9 of SEPP Housing, and secondly, the Apartment Design Guide (ADG) and the advice received from the design review panel. In undertaking this consideration, I have read the design analysis prepared by Alexander-Hatziplis of Place Studio (Registered Architect #10535). I accept the agreement of the parties that appropriate consideration has been given to the matters listed a subs 147(1) of SEPP Housing.

6. Further, subs 29(2) of the (EPA Regulation) requires a development application that relates to residential apartment development to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. The statement must verify the designer designed, or directed the design of the development, and explain how the development addresses the design principles, and objectives in Parts 3 and 4 of the ADG (subs 29(2) of the EPA Regulation).

7. I am satisfied that the statement provided by Alexander-Hatziplis adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG.

8. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied.

9. As the site is in proximity to an exposed overhead electricity power line subs 2.48(1)(b)(iii) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. Consistent with subs 2.48(2) of SEPP TI the Respondent has given written notice to Ausgrid, the electricity supply authority of the area in which the development is to be carried out. A response was provided from Ausgrid indicating that there were no objections to the proposal.

10. Sutherland Shire Local Environmental Plan 2015 (LEP 2015) applies to the land which is zoned E2 Commercial Centre. In determining the development application, I have given consideration to the zone objectives which are:

•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

11. The proposed development, a residential flat building, is development permitted with consent in the zone.

12. Pursuant to cl 4.3(2) of LEP 2015 and the Height of Buildings Map of the LEP, a height development standard of 20 metres applies to the Site. The development application provides a maximum building height of 19.9 metres and, thus, complies with the height development standard.

13. Pursuant to cl 4.4(2) of LEP 2015, and the Floor Space Ratio (FSR) Map, a FSR development standard of 2:1 applies to the site. The parties agree and I accept that the development application provides a maximum FSR of 1.99:1 and, thus, complies with the FSR development standard.

14. The development application seeks consent for excavation and fill. As required by cl 6.2 ‘Earthworks’ of LEP 2015, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the stormwater and architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application.

15. Pursuant to cl 6.4 ‘Stormwater Management’ development consent must not be granted unless the consent authority is satisfied that the development:

(a)  is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

16. The development application is accompanied by an amended concept stormwater plan which addresses stormwater drainage from the development and provides for on-site detention and reuse of stormwater. I am satisfied that the design of the development maximises the use of water permeable surfaces on the site and allows for deep soil planting areas. Further, I am satisfied that the stormwater design is such that any adverse impact from stormwater are mitigated by the stormwater design proposed.

17. The development application was notified by the Respondent in February 2023. A total of thirty-five submission were received by the Respondent objecting to the development. Further, at the commencement of the conciliation the Court was addressed by two members of the public. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

18. Sutherland Shire Development Control Plan 2015 (DCP 2015) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2015 In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (subs 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

8. The Court notes that:

1. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials.

Document Description	Prepared By	Date
Architectural plans:
AR-DA-0000 (Rev. F) – Cover Sheet	PLACE Studio	11 December 2023
AR-DA-0001 (Rev. F) – Compliance Table	PLACE Studio	11 December 2023
AR-DA-0002 (Rev. F) – Location Plan	PLACE Studio	11 December 2023
AR-DA-0003 (Rev. F) – Site Analysis Plan	PLACE Studio	11 December 2023
AR-DA-0004 (Rev. F) – Street Analysis	PLACE Studio	11 December 2023
AR-DA-0005 (Rev. F) – Demolition Plan	PLACE Studio	11 December 2023
AR-DA-0006 (Rev. C) – BASIX Certificate	PLACE Studio	11 December 2023
AR-DA-1001 (Rev. I) – Basement B2	PLACE Studio	15 March2024
AR-DA-1002 (Rev. I) – Basement B1	PLACE Studio	15 March 2024
AR-DA-2000 (Rev. J) – Ground Level	PLACE Studio	18 March 2024
AR-DA-2001 (Rev. G) – Level 01-03	PLACE Studio	11 December 2023
AR-DA-2004 (Rev. G) – Level 04	PLACE Studio	11 December 2023
AR-DA-2005 (Rev. G) – Level 05	PLACE Studio	11 December 2023
AR-DA-2010 (Rev. G) – Roof Plan	PLACE Studio	12 March 2024
AR-DA-3000 (Rev. F) – Section 1	PLACE Studio	11 December 2023
AR-DA-3001 (Rev. G) – Section 2	PLACE Studio	11 December 2023
AR-DA-3002 (Rev. H) – Section Ramp 1	PLACE Studio	26 February 2024
AR-DA-4000 (Rev. I) – North & South Elevation	PLACE Studio	15 March 2024
AR-DA-4001 (Rev. H) – East & West Elevation	PLACE Studio	12 March 2024
AR-DA-4002 (Rev. G) – Finishes	PLACE Studio	4 March 2024
AR-DA-5000 (Rev. G) – Shadow Diagrams 21st December	PLACE Studio	11 December 2023
AR-DA-5001 (Rev. G) – Shadow Diagrams 21st June	PLACE Studio	11 December 2023
AR-DA-5002 (Rev. G) – Shadow Diagrams 21st March	PLACE Studio	11 December 2023
AR-DA-5003 (Rev. C) – Shadow Diagrams 21st June AXNO	PLACE Studio	11 December 2023
AR-DA-5010 (Rev. G) – Solar View-June 21 9 AM	PLACE Studio	11 December 2023
AR-DA-5011 (Rev. G) – Solar View-June 21 10 AM	PLACE Studio	11 December 2023
AR-DA-5012 (Rev. G) – Solar View-June 21 11 AM	PLACE Studio	11 December 2023
AR-DA-5013 (Rev. G) – Solar View-June 21 12 PM	PLACE Studio	11 December 2023
AR-DA-5014 (Rev. G) – Solar View-June 21 1 PM	PLACE Studio	11 December 2023
AR-DA-5015 (Rev. G) – Solar View-June 21 2PM	PLACE Studio	11 December 2023
AR-DA-5016 (Rev. G) – Solar View-June 21 3PM	PLACE Studio	11 December 2023
AR-DA-5017 (Rev. B) – Solar Access 21-23 Boronia Avenue	PLACE Studio	11 December 2023
AR-DA-6000 (Rev. H) – LEP Height Diagram	PLACE Studio	12 March 2024
AR-DA-6001 (Rev. G) – Solar Access Compliance Plans	PLACE Studio	11 December 2023
AR-DA-6002 (Rev. G) – Cross Ventilation Compliance Plans	PLACE Studio	11 December 2023
AR-DA-6003 (Rev. G) – GFA Calculation Plans	PLACE Studio	11 December 2023
AR-DA-6004 (Rev. G) – Deep Soil & Landscape Calc	PLACE Studio	11 December 2023
AR-DA-6006 (Rev. E) – Proposed SK Design – Neighbouring Prop	PLACE Studio	11 December 2023
AR-DA-6007 (Rev. F) – Proposed SK Design – Neighbouring Prop	PLACE Studio	11 December 2023
AR-DA-6008 (Rev. F) – Proposed SK Design – Neighbouring Prop	PLACE Studio	11 December 2023
AR-DA-6009 (Rev. E) – Proposed SK Design – Neighbouring Prop	PLACE Studio	11 December 2023
AR-DA-7005 (Rev. G) – Communal Open Space	PLACE Studio	11 December 2023
AR-DA-8000 (Rev. C) – Building Entry	PLACE Studio	18 March 2024
Landscape plans:
DA-1996 Page 1 (Rev. D) – Title Page	Captivate Landscape Design & Architecture	26 February 2024
DA-1996 Page 2 (Rev. D) – Planting Plan	Captivate Landscape Design & Architecture	26 February 2024
DA-1996 Page 3 (Rev. D) – Level 4 & Planting Schedule	Captivate Landscape Design & Architecture	26 February 2024
DA-1996 Page 4 (Rev. D) – Elevations	Captivate Landscape Design & Architecture	26 February 2024
Concept stormwater plans:
22CSY341/SW1 (Iss. E) – Basement 2 Drainage Plan	CSY Engineers	19 February 2024
22CSY341/SW2 (Iss. E) – Basement 1 Drainage Plan	CSY Engineers	19 February 2024
22CSY341/SW3 (Iss. E) – Ground Floor Drainage Plan	CSY Engineers	19 February 2024
22CSY341/SW4 (Iss. E) – Stormwater Drainage Details	CSY Engineers	19 February 2024
22CSY341/SW5 (Iss. E) – Water Treatment Details	CSY Engineers	19 February 2024
Concept construction plans:
S1 (Rev. B) – General Notes -1-	CSY Engineers	12 March 2024
S2 (Rev. B) – General Notes -2-	CSY Engineers	12 March 2024
S3 (Rev. B) – Basement Shoring Plan	CSY Engineers	12 March 2024
S4 (Rev. B) – Shoring Details	CSY Engineers	12 March 2024
S5 (Rev. B) – Ground Floor Footing Plan	CSY Engineers	12 March 2024
Geotechnical Investigation Report reference G23260-1	Geotechnical Consultants Australia Pty Ltd	10 July 2023
Hydraulic Fire Services Report	Mike Jones (M & D Jones Fire Services Consultants)	12 July 2023
DBYD Plan	Sydney Water Corporation	19 June 2023
Fire Brigade Appliance Access drawing reference MDJ-FB-1, Rev. 1	M & D Jones Fire Services Consultants	7 March 2024
Response to Outstanding Traffic Matters reference 22133	CJP Consulting Engineers	4 March 2024
Arboricultural Statement	Jacksons Nature Works	19 December 2023
BASIX Certificate number 142868M_04	Greenview Consulting Pty Ltd	6 December 2023
NatHERS Certificate number 0008966770	Greenview Consulting Pty Ltd	6 December 2023
Updated Design Verification Statement Issue B	Place Studio	4 April 2024
Design Quality Principles Issue B	Place Studio	4 April 2024

2. The Applicant filed the amended development application in Court on 4 April 2024.

9. The Court orders that:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application in the agreed final sum of $20,000.00 to be paid within 28 days of these orders.

2. The appeal is upheld.

3. Development application number DA22/1154, as amended, for the demolition of existing structures and construction of a residential flat building on land identified as Lot 17 in Deposited Plan 14633 and Lot 18 in Deposited Plan 14633 and known as 32-34 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included at Annexure A.

D Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 23 April 2024