Architecture Becka and Associates v Sutherland Shire Council

[2022] NSWLEC 1145

Land and Environment Court

New South Wales

Medium Neutral Citation:

Architecture Becka & Associates v Sutherland Shire Council [2022] NSWLEC 1145

Hearing dates:

Conciliation conference on 16 February 2022, 2 March 2022

Date of orders:

21 March 2022

Decision date:

21 March 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the amount of $7,500 within 28 days from the date of the orders.

(2) The appeal is upheld.

(3) Development Application No. 2021/0735 for the demolition of the existing building and structures and the construction of a part one storey and part two storey multi dwelling housing development comprising 7 x 3 bedroom dwellings with basement car parking and Strata Subdivision at Lot 801 in Deposited Plan 548227 otherwise known as 13 Rawson Parade Caringbah South is approved subject to the conditions at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – multi-dwelling housing – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.16

Environment Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 8.15, 34

State Environmental Planning Policy No 55 – Remediation of Land cl 7

Sutherland Shire Local Environmental Plan 2015

cll 4.1E, 4.3, 4.4, 6.1, 6.14

Category:

Principal judgment

Parties:

Architecture Becka & Associates (Applicant)
Sutherland Shire Council (Respondent)

Representation:

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

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

File Number(s):

2021/288599

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal arises as the result of Sutherland Shire Council’s deemed refusal of Development Application No. 21/0735 which seeks consent for the demolition of existing building and structures and the construction of a part one-storey and part two-storey multi dwelling housing development comprising 7 x 3 bedroom dwellings with basement carparking, and Strata Title subdivision, at Lot 801 in DP 548227, 13 Rawson Parade, Caringbah South. These proceedings have been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 February 2022 and further on 2 March 2022. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be mutually acceptable. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and from this I note the following.

5. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) cl 7 (1) requires the consent authority to consider whether the land is contaminated and, if so, be satisfied that it is suitable in its contaminated state (or will be suitable, after remediation) for the intended development. A preliminary Site Investigation was undertaken by GCA Geotechnical Consultants to investigate the likelihood of contamination on site and concludes that given its historic and continued use for residential purposes, and no history of alternate uses, concluded the risk of significant contamination to be low and that the site is suitable for the intended use. The report makes several recommendations, and conditions have subsequently been imposed in accordance with these. From this I am satisfied that the site will be suitable for the proposed development and the requirements of SEPP 55 cl 7 have been met.

6. An amended BASIX Certificate has been provided that applies to the amended application, prepared by Evergreen Energy Consultants Pty Ltd dated 3 March 2022.

7. The development application was notified in accordance with Council’s requirements between 31 August 2021 and 22 September 2021. 14 submissions were received, and I am satisfied based on the submissions of the parties that these objector concerns have been taken into account in the assessment of the amended application.

8. The Sutherland Shire Local Environmental Plan 2015 (SSLEP) applies to the site and sets the following development standards:

1. Clause 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.55:1. The proposed FSR meets this as demonstrated on drawing DA 110, with a site are of 1507.6m² and a GFA of 829.18m², equating to an FSR of 0.55:1.

2. Clause 4.3 sets a maximum building height of 8.5m. The proposal complies with this, with a maximum height shown on drawings DA 105 and DA 106 of 8.5m.

3. Clause 6.14 requires 35% of the site area to be ‘landscaped area’. The proposal incorporates 528.38m², or 35.04% landscaped area, as demonstrated on drawing DA 110.

4. Clause 4.1E sets a minimum lot size of 1200m². The area of the subject site is 1507.6m² and is therefore compliant.

5. Pursuant to cl 6.1, the proposed development is identified as being affected by Acid Sulfate Soils, class 5. However, the proposed development does not constitute “works within 500 metres adjacent to Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent 1, 2, 3, or 4 land”. An Acid Sulfate Management Plan is therefore not required and the requirements of cl 6.1 are met.

6. The site is zoned R2 Low Density Residential, in which multi-dwelling housing is permitted with consent.

9. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. 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’ decision.

11. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority has agreed, pursuant to cl 55 of the Environment Planning and Assessment Regulation 2000, to amend Development Application No. 2021/0735.

2. The Applicant has uploaded the amended application to the NSW Planning Portal on 3 March 2022.

3. The Applicant has subsequently filed the amended Development Application No. 2021/0735 with the Court on 3 March 2022 as described in Annexure A.

12. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the amount of $7,500 within 28 days from the date of the orders.

2. The appeal is upheld.

3. Development Application No. 2021/0735 for the demolition of the existing building and structures and the construction of a part one storey and part two storey multi dwelling housing development comprising 7 x 3 bedroom dwellings with basement car parking and Strata Subdivision at Lot 801 in Deposited Plan 548227 otherwise known as 13 Rawson Parade Caringbah South is approved subject to the conditions at Annexure B.

……………………….

E Washington

Acting Commissioner of the Court

Annexure B (258360, pdf)

Annexure A (72218, pdf)

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Decision last updated: 21 March 2022