Barker v Sutherland Shire Council

[2024] NSWLEC 1421

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barker v Sutherland Shire Council [2024] NSWLEC 1421

Hearing dates:

Conciliation conference on 17 July 2024

Date of orders:

24 July 2024

Decision date:

24 July 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA23/0387 for the demolition of existing structures, tree removal, construction of a two-storey detached dwelling house with swimming pool and associated landscaping works at 30 Verona Range, Como, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 6.1, 6.2, 6.4, 6.5, 6.7, 6.9, 6.13A, 6.14, 6.16, 6.17.

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6

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

Texts Cited:

Sutherland Shire Council Community Engagement Strategy 2022-2026

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Damien Barker (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/448634

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Sutherland Shire Council, of DA23/0387 which seeks consent for the demolition of existing structures, tree removal, and construction of a two-storey detached dwelling house with swimming pool and associated landscaping works at 30 Verona Range, Como, Lot B in DP 388624.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 July 2024. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Regs), the Council agreed to the applicant amending the development application. These amendments included:

1. Setback of the building envelope from the front boundary by a further 1.5m.

2. Adjustments to the proposed footpath entryway and vehicle driveway within the frontage of the site to facilitate the retention of medium and high-retention value trees (T1-T4) within this area.

3. Reconfiguration of the rear lawn and placement of the swimming pool – adjacent to the foreshore building area.

4. Increased landscape area and reconfigured planting scheme selected from the River Flat Eucalyptus Forest Endangered Ecological Community, in compliance with Council’s Greenweb specifications as set out in Ch 39 pt 4.9 of the Sutherland Shire Development Control Plan 2015.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 explained how they have been satisfied.

Jurisdictional matters

7. The development application was made with the written consent of the owner of the land.

8. The application was adequately notified in accordance with the Sutherland Shire Council Community Engagement Strategy 2022-2026 from 21 June to 6 July 2023. No submissions were received, and the parties agree that the amended application does not necessitate renotification.

9. The subject site is zoned C4 – Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. Pursuant to SSLEP cl 4.3, a maximum building height of 8m applies to the subject site. The proposed development complies with this development standard with a maximum height of 7.655m.

11. SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development again complies with this development standard with an FSR of 0.39:1.

12. The site is not identified as a heritage item, nor located within a heritage conservation area.

13. The site is also not identified in the flood planning area.

14. Pursuant to SSLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, and is within 60m of Class 1, 2 and 4 areas in Carina Bay. Based on the parties’ submission, the Statement of Environmental Effects (SEE), and the architectural elevations and sections (drawings 04A, 04B.1 and 05A), I accept that the proposed works are generally carried out at natural ground level and are not likely to lower the water table below 1 metre Australian Height Datum.

15. SSLEP cl 6.2 sets out provisions for earthworks for which development consent is required. Based on the parties’ submission and the architectural plans, I accept that the matters listed at cl 6.2(3) have been adequately considered and that, subject to the relevant conditions of consent, the proposed development does not contravene the objective of this clause.

16. Pursuant to the requirements of SSLEP cl 6.4, based on the updated stormwater plans in the amended application, the supplementary assessment provided by Hydracor Consulting Engineers dated 26 June 2024 (supplementary stormwater assessment), and the parties’ submission, I accept that in accordance with cl 6.4(3) the development:

1. Is designed to maximise the use of water permeable surfaces on the land;

2. Includes on-site stormwater retention for use as an alternative water supply, and;

3. Avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and the receiving waters at Carina Bay.

17. The site is mapped as ‘Environmentally Sensitive Land’ on the Terrestrial Biodiversity Map pursuant to SSLEP cl 6.5. Subsequently, based on the Supplementary Planning Assessment by Planzone dated 28 June 2024, and the parties’ submissions, I accept that the development retains and restores high-value vegetation, clears noxious weeds, and proposes new planting of native vegetation and canopy linkages. Subsequently, I accept that the matters listed in cl 6.5(3) have been considered in the assessment of this application, and am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on terrestrial biodiversity pursuant to cl 6.5(4).

18. The site is also mapped as ‘Environmentally Sensitive Land’ on the Riparian Land and Watercourses Map pursuant to SSLEP cl 6.7. Based on the amended stormwater management plans, the supplementary stormwater assessment and the parties’ submissions I accept that the proposed development adequately manages stormwater adjacent to the neighbouring watercourse, and that the quality of stormwater and runoff post-development is anticipated to be equal to or better than the existing condition. From this, I accept that matters listed in cl 6.7(3) have been considered in the assessment of this application, and am satisfied that the development is designed, sited, and will be managed to avoid any significant adverse environmental impact on riparian land and watercourses, pursuant to cl 6.7(4).

19. Pursuant to SSLEP cl 6.9, the eastern end of the site is designated as Foreshore Area due to a foreshore building line which traverse the site. From the parties’ submission, the amended architectural plans and the amended landscape plans, I accept that the proposed landscape works and waterway access stairs are permissible within this area, that there are no other building works within this area, and that the matters listed in cl 6.9(4) have been considered. I further accept, based on this evidence and the information contained in the SEE and in accordance with the relevant provisions of cl 6.9(3), that the proposed works within the foreshore area:

1. Will be compatible with the surrounding area in terms of appearance,

2. Will not cause environmental harm of the types listed in cl 6.9(3)(b),

3. Will retain the natural qualities of the foreshore area through retention of natural levels and endemic vegetation,

4. Will not cause congestion or generate conflict between people using the waterway, and

5. Will not compromise public access along the foreshore and waterway, as the site and its neighbours are privately owned.

20. The street frontage of this site is identified on the Green Grid links map, pursuant to SSLEP cl 6.13A. From the parties’ submissions, the amended landscape plans and the amended arboricultural assessment I accept that the proposed development, in retaining trees T1 to T4 and proposing the planting of additional canopy trees, retains and enhances tree canopy cover as per the consideration at cl 6.13A(3).

21. Pursuant to the requirements of SSLEP cl 6.14, the site is subject to a minimum landscaped area provision of 40% of the site area. As demonstrated by Landscape Area Calculation drawing L-02 by Site Design Studios, the proposed development meets this requirement with a proposed landscape area of 48.15%.

22. SSLEP cll 6.16 and 6.17 list general and residential urban design considerations that apply to this development. From the parties’ submission, the information contained in the SEE, and the information contained in the amended application filed with the Court, I accept that these matters have been adequately considered in the amended development application, and that the proposed development represents high-quality urban design outcomes that minimise adverse impacts and respond to the environmental and built constraints of the site and its surrounds.

23. Pursuant to s 2.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), the site is mapped as being within the ‘Coastal Environment Area’. Based on the parties’ submission and the supporting architectural and landscape plans, the Tree Retentions and Removals Assessment letter prepared by Hugh the Arborist, the Supplementary Stormwater letter prepared by Hydracor, the Supplementary Assessment (Clause 6.5) prepared by Planzone, and the SEE, I accept that the proposed development is unlikely to cause an adverse impact on any of the matters listed in s 2.10(1). Accordingly, I am satisfied that the development is designed and sited to avoid any significant adverse impact of the kind listed in s 2.10(1), and appropriate measures are proposed to avoid, minimise and mitigate any of these impacts should they occur.

24. Pursuant to s 2.11 of the SEPP Resilience and Hazards, the site is also identified as a ‘Coastal Use Area’, and the consent authority must also consider whether the proposed development is likely to cause an adverse impact on any of the matters listed in s 2.11(1)(a). Based on the parties’ submission, the amended architectural and landscape plans and the SEE, I accept that the proposed development is designed, sited and will be managed to avoid an adverse impact of the type referred to in s 2.11(1)(a), as required by 2.11(1)(b), and that the surrounding coastal and built environment, and the bulk, scale and size of the proposed development has been taken into account.

25. As the site is mapped as both ‘Coastal Environment Area’ and ‘Coastal Use Area’, pursuant to s 5 of the Coastal Management Act 2016, the site is subsequently also identified as ‘Coastal Zone’ and ss 2.12 and 2.13 of the SEPP Resilience and Hazards apply to the site. From the parties’ submission and the supporting architectural and landscape plans I am satisfied, due to the limited excavation, the lack of construction works other than landscaping beyond the foreshore building line, and the large, vegetated setback, that the proposed development is not likely to cause increased risk of coastal hazards on the site or other land (s 2.12). Further, I accept that no certified coastal management program applies to the land (s 2.13).

26. Section 4.6 of the SEPP Resilience and Hazards requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE by Planning Approvals and the parties’ submission, I accept that the subject site has been historically used for residential purposes for nearly 100 years, and there are no known actions that may have led to contamination of this land. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the subject site is suitable for its intended purpose.

27. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) provides for the clearing of vegetation in non-rural areas. The proposed development, as amended, seeks the removal of five trees which are assessed in the following documents:

1. Arboricultural Impact Assessment by Arboreport dated 25 May 2023

2. Arboricultural Assessment Addendum prepared by Arboreport dated 8 May 2024,

3. Arboricultural Assessment Addendum prepared by Hugh the Arborist dated 20 June 2024, and

4. Tree Retentions and Removals Assessment Letter prepared by Hugh the Arborist dated 26 June 2024.

28. From these documents, the landscape design and the parties’ submissions, I accept that the removal of these trees and proposed replacement planting is consistent with the relevant local planning objectives.

29. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy 2004 (Building and Sustainability Index: BASIX). Compliance with the commitments within this certificate is further required through a condition of consent.

30. 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.

31. 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.

32. The Court notes:

1. Sutherland Shire Council, as the relevant consent authority, has approved under s 38 of the EPA Reg to the applicant amending development application DA23/0387 in accordance with the following documents:

No.	Drawing No	Rev	Drawing Title		Prepared By	Date
Architectural Plans
1.	01.1, Job No. BAR61321	N	Site Plan		Charleston	26/06/2024
	01.2, Job No. BAR61321	N	Site Plan (Streetscape)		Charleston	26/06/2024
	01.3, Job No. BAR61321	N	Driveway Gradient		Charleston	26/06/2024
	01F, Job No. BAR61321	N	External Colours and Finishes		Charleston	26/06/2024
	04A, Job No. BAR61321	N	Ground Floor Plan		Charleston	26/06/2024
	02B, Job No. BAR61321	N	First Floor Plan		Charleston	26/06/2024
	03, Job No. BAR61321	N	Roof Plan		Charleston	26/06/2024
	04A, Job No. BAR61321	N	Elevations		Charleston	26/06/2024
	04B.1, Job No. BAR61321	N	Elevations		Charleston	26/06/2024
	04B.2, Job No. BAR61321	N	Rear Elevation Cont.		Charleston	26/06/2024
	05A, Job No. BAR61321	N	Sections		Charleston	26/06/2024
Landscape Plans
2.	1508, Page No. L-02	F	Landscape Area Calculation - Site Plan		Site Design + Studios	25/06/2024
	1508, Page No. L-03	F	Tree Removal & Retention Plan		Site Design + Studios	25/06/2024
	1508, Page No. L-05	F	Materials & Levels Plan Front Yard		Site Design + Studios	25/06/2024
	1508, Page No. L-05	F	Materials & Levels Plan Rear Yard		Site Design + Studios	25/06/2024
	1508, Page No. L-06	F	Planting Plan Front Yard		Site Design + Studios	25/06/2024
	1508, Page No. L-07	F	Planting Plan Rear Yard		Site Design + Studios	25/06/2024
	1508, Page No. L-08	F	Section Elevation A		Site Design + Studios	25/06/2024
	1508, Page No. L-09	F	Elevation B		Site Design + Studios	25/06/2024
	1508, Page No. L-10	F	Section Elevation C & D		Site Design + Studios	25/06/2024
	1508, Page No. L-11	F	Elevation E & F		Site Design + Studios	25/06/2024
	1508, Page No. L-12	F	Planting Images and Typical Details		Site Design + Studios	25/06/2024
	1508, Page No. L-13	F	Maintenance Notes		Site Design + Studios	25/06/2024
Stormwater Plans
3.	CC230094 – C1	B	Cover Sheet & Nos		Hydracor	21/06/2024
	CC230094 – C2	B	Stormwater Management Plan		Hydracor	21/06/2024
	CC230094 – C3	B	Stormwater Management Details – Sheet No. 1		Hydracor	21/06/2024
Survey Plan
4.	14933-20 DET ID – Sheet 1 of 2	V3	Detail & Boundary Identification NW Survey of Lot B in DP 388624		C & A Surveyors	21/03/2024
	14933-20 DET ID – Sheet 2 of 2	V3	Detail & Boundary Identification NW Survey of Lot B in DP 388624		C & A Surveyors	21/03/2024
Supporting Documentation
No.	Document			Prepared by			Date
5.	Addendum Aboricultural Impact Assessment			Arboreport			8 May 2024
6.	Further Addendum Aboricultural Assessment			Hugh the Arborist			20-June 2024
7.	Tree Retentions and Removals Assessment Letter			Hugh the Arborist			26 June 2024
8.	Supplementary Stormwater Assessment Letter			Hydracor			3 July 2024
9.	Supplementary Assessment (cl 6.5) Letter			Planzone			28 June 2024
10.	BASIX Certificate No. 1364627S_04			Planning Approvals			28 June 2024

33. The Court orders:

1. The appeal is upheld.

2. Development application DA23/0387 for the demolition of existing structures, tree removal, construction of a two-storey detached dwelling house with swimming pool and associated landscaping works at 30 Verona Range, Como, is determined by the grant of consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

**********

Annexure A

Decision last updated: 24 July 2024