Builtcom Developments President Square Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1147

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Builtcom Developments President Square Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1147

Hearing dates:

Conciliation conference on 21 December 2023; 5, 21 and 28 February 2024; 6, 18 and 22 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The modification application MA23/0154 is approved.

(2) Development consent no. DA19/0333 is modified in the terms set out in Annexure A.

(3) Development consent no. DA19/0333 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 2.22, 4.55; Sch 1

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 113

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.119, 2.120, 2.122

State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022

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

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 30; Sch 1

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 6.2, 6.4, 6.15, 6.16, 6.17

Cases Cited:

Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458

Category:

Principal judgment

Parties:

Builtcom Developments President Square Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/212442

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a development consent (DA19/0333) granted by the Court on 29 September 2020 in Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458 (the Consent).

2. The Consent approved the demolition of existing structures; tree removal; construction of a shop top housing development containing a supermarket, liquor store, specialty shops, 130 residential apartments, undercroft and basement car parking; internal fitout and use of the supermarket and liquor store; advertising signs and signage zones; and associated civil infrastructure, public domain and landscape works at 178-186 Willarong Road, 41-47 President Avenue and 51 President Avenue, Caringbah (legally described as Lot A in DP449572, Lot B in DP449572, Lot X in DP396618, Lot D in DP387699 and Lot 26 to 29 in DP10068) (the site).

3. The modification application is to relocate and redesign residential apartments and make changes to the design of the car park, supermarket and associated infrastructure (proposed development).

4. 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 21 December 2023. I presided over the conciliation conference.

Amended plans and documents

5. During the conciliation process, the Council approved, under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), to the applicant amending modification application MA23/0154 to rely upon the following amended plans and documents (collectively, the amended modification application):

1. Amended Plans prepared by CQ Studios:

Plan No.	Plan Name	Rev	Dated
DA01-000	Cover Page	DA3	28 February 2024
DA01-100	Development Data Sheet	DA4	2 February 2024
DA01-200	Height Plane Diagram	DA2	11 December 2023
DA10-010	Site Plan	DA4	2 February 2024
DA10-070	Basement 3 Plan	DA4	19 January 2024
DA10-080	Basement 2 Plan	DA4	19 January 2024
DA10-090	Basement 1 Plan	DA4	19 January 2024
DA10-100	Ground Floor Plan	DA4	19 January 2024
DA10-110	Level 1 Plan	DA4	19 January 2024
DA10-115	Level 1 Mezzanine Plan	DA4	19 January 2024
DA10-120	Level 2 Plan	DA4	19 January 2024
DA10-130	Level 3 Plan	DA4	19 January 2024
DA10-140	Level 4 Plan	DA4	19 January 2024
DA10-150	Level 5 Plan	DA6	6 February 2024
DA10-160	Level 6 Plan	DA5	2 February 2024
DA10-170	Level 7 Plan	DA5	2 February 2024
DA10-180	Level 8 Plan	DA4	19 January 2024
DA10-190	Roof Plan (Survey Overlay)	DA5	2 February 2024
DA10-200	Adaptable Unit Types - Sheet 01	DA2	19 January 2024
DA10-201	Adaptable Unit Types - Sheet 02	DA2	19 January 2024
DA10-202	Adaptable Unit Types - Sheet 03	DA2	19 January 2024
DA10-203	Adaptable Unit Types - Sheet 04	DA2	19 January 2024
DA10-204	Adaptable Unit Types - Sheet 05	DA2	19 January 2024
DA20-101	West East Elevation	DA5	6 February 2024
DA20-102	North South Elevation	DA5	2 February 2024
DA20-201	Internal Courtyard Elevations	DA4	19 January 2024
DA20-202	Internal Courtyard Elevations	DA4	19 January 2024
DA20-301	Signage Elevations	DA1	28 February 2024
DA30-001	Section DA-01	DA4	19 January 2024
DA30-002	Section DA-02	DA4	19 January 2024
DA91-001	GFA Plans - Sheet 01	DA4	19 January 2024
DA91-002	GFA Plans - Sheet 02	DA4	19 January 2024
DA93-001	Solar Access Diagrams	DA4	19 January 2024
DA93-003	Solar Suneye Views	DA4	19 January 2024
DA93-004	Solar Suneye Views	DA4	19 January 2024
DA93-005	Solar Suneye Views	DA4	19 January 2024
DA93-006	Solar Suneye Views	DA4	19 January 2024
DA93-007	Shadow Analysis	DA4	19 January 2024
DA93-008	Shadow Analysis - Communal Open Space	DA3	19 January 2024
DA94-000	Cross Ventilation Compliance Plans	DA4	19 January 2024
DASK-001	Mezzanine Details and Sections	DA4	19 January 2024
DASK-002	Balcony Condenser & Façade Element Details	DA2	2 February 2024
DASK-003	Typical Façade Plan and Elevation	DA1	19 January 2024
DASK-004	Light-Weight Awning Details	DA1	2 February 2024

2. Landscape Plans prepared by GSAGroup:

Plan No.	Plan Name	Rev	Dated
L0000	Coversheet	D	18 January 2024
L1000	Landscape Specification	D	18 January 2024
L1100	Landscape Plans – Level 1	C	13 December 2023
L1101	Landscape Plan – Public Domain Area	D	18 January 2024
L1102	Landscape Plan – LV2 Overall	D	18 January 2024
L1103	Landscape Plan – LV2 1 of 3	D	18 January 2024
L1104	Landscape Plan – LV2 2 of 3	D	18 January 2024
L1105	Landscape Plan – LV2 3 of 3	D	18 January 2024
L1106	Landscape Plan – LV6	D	18 January 2024
L5001	Planting Palette	D	18 January 2024

3. Civil Plans prepared by Xavier Knight:

Plan No.	Plan Name	Rev	Dated
C000	Cover page	B	6 April 2023
C100	Stormwater management plan – ground floor	C	6 October 2023
C101	Stormwater quality catchment plan	B	6 April 2023
C102	Stormwater quality details	B	6 April 2023
C300	Demolition plan	B	6 April 2023
C301	Soil and water management plan	B	6 April 2023
C302	Soil and water management details	B	6 April 2023
C303	Soil and water management notes	B	6 April 2023
C090	Stormwater Management Plan – Basement 1	A	6 October 2023

4. Other documents:

Document(s)	Dated
Visual Impact Analysis prepared by CQ Studio	2 February 2024
SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio	2 February 2024
Traffic Management Report prepared by Loka Consulting Engineers	4 December 2023
Natural Ventilation Plenum Duct Memo prepared by Windtech	4 December 2023
Building Code of Australia Compliance Statement prepared by Allcert	14 December 2023
Acoustical Report prepared by Koikas Acoustics	12 December 2023
Access Design Report prepared by Certis Access	14 December 2023
Green Travel Plan prepared by Loka Consulting Engineers	22 December 2023
Survey Plan
Building Height Assessment prepared by Planning Ingenuity	15 December 2023
BASIX Certificate	16 February 2024
NatHERS Thermal Assessor Certificate	15 December 2023
Statement of environmental effects prepared by Gyde Consulting	28 June 2023
Arborist report prepared by Redgum Horticultural	22 March 2023
Stormwater quality letter prepared by Xavier Knight	6 April 2023
Quantity surveying report prepared by Newton Fisher Group	30 March 2023
Fire services drawing prepared by Goldfish & Bay, Rev P1	19 April 2023
Waste management plan prepared by CQ Design Studio, Rev A	12 April 2023
Construction Management Plans	15 May 2023

6. The amended modification application was filed with the Court on 22 March 2024.

7. The Council, being satisfied that the amended modification application addresses the contentions in its Statement of Facts and Contentions, has executed a s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to it. This decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify development consent no. DA19/0333.

8. 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. In that regard I note the following matters.

Jurisdictional preconditions

9. The modification application was notified between 1 August 2023 and 18 August 2023 in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act.

10. All matters of relevance raised in the submissions to the modification have been taken into consideration.

11. The provisions of s 4.55(2) of the EPA Act apply to this modification application. The parties submit and I accept for the reasons outlined in the Statement of Environmental Effects that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted.

Sutherland Shire Local Environmental Plan 2015 (LEP)

12. The parties submit and I accept that the below provisions of the LEP apply and were satisfied when the Consent was granted. There are no further provisions in the LEP that apply so as to create jurisdictional preconditions to the determination of the modification application.

13. The proposed modifications do not trigger any further matters for assessment under the LEP. The provisions are included below for completeness.

14. The site is zoned E2 Commercial Centre under the LEP. The site was previously zoned B2 Commercial Core prior to the commencement of the State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022 which omitted Business Zones, including the B2 Commercial Core, from the LEP and inserted instead Employment Zones, including the E2 Commercial Centre zone.

15. The proposed development is a permissible land use with development consent in the E2 Commercial Centre zone.

16. The objectives of the E2 Commercial Centre zone 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.

17. Consideration has been given to the objectives of the E2 Commercial Centre zone as required by cl 2.3(2) of the LEP.

18. The parties submit and I accept that the proposed development is consistent with the objectives of the E2 Commercial Centre zone.

Clause 4.3 Height of buildings

19. The site is identified as two internal sites, being the Northern building and Southern Building.

20. Pursuant to cl 4.3 of the LEP and the Height of Buildings Map, the site is subject to a 20 m height control at the Southern building and 30 m height control at the Northern building. The Consent included a breach of the height control at both the Northern building (1 m) and the Southern building (4.4 m). A written request that justified the contravention of the development standards, in accordance with cl 4.6 of the LEP was granted for the Consent. The proposed development includes a further breach of the height control at the Northern building by a maximum of 2.95 m.

Clause 4.4 Floor space ratio (FSR)

21. Pursuant to cl 4.4 of the LEP and the Floor Space Ratio Map, the site is subject to a FSR control of 3:1 at the Southern building and a FSR control of 2.5:1 at the Northern building. The Consent included an FSR for the Southern building of 2.83:1 and an FSR for the Northern building of 3.61:1 which constituted a breach of the FSR control for the Northern building. The proposed development does not propose any further breach of the FSR control and no overall change to the FSR across the site (as demonstrated on plan DA01-100 Rev DA4 prepared by CQ Studio, enclosed at Tab 1 of the amended modification application).

Clause 6.2 Earthworks

22. The Consent includes a Preliminary Geotechnical Report prepared by Geo-Logix dated 10 July 2018, which addressed cl 6.2(3) of the LEP. The parties submit and I accept that the Consent satisfies the considerations within cl 6.2 and that the site is suitable for the proposed development.

Clause 6.4 Stormwater management

23. The applicant has provided Civil Plans prepared by Xavier Knight and a Stormwater Quality Letter prepared by Xavier Knight dated 6 April 2023. The Stormwater Management Report concludes that water sensitive urban design principles are incorporated into the design of the proposed development, and that stormwater run-off will be managed throughout the site.

24. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.4 of the LEP.

Clause 6.15 Energy efficiency and sustainable building techniques for commercial and industrial developments

25. The applicant has provided Architectural plans prepared by CQ Studios dated 2 February 2024 which details the materials and construction of the building, a Waste Management Plan prepared by CQ Design Studio, Rev A dated 12 April 2023 and the Consent also included a Coles Caringbah Supermarket Operations Management Plan dated January 2020 which collectively detail how the waste from the site will be managed.

26. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.15 of the LEP.

Clause 6.16 Urban design - general

27. The applicant provided an Urban Design Report prepared by e8urban dated 16 March 2018 which addresses cl 6.16 of the LEP. The parties agree that the Consent and the proposed development satisfy the considerations within cl 6.16.

Clause 6.17 Urban design - residential accommodation

28. The applicant has provided a Visual Impact Analysis prepared by CQ Studio dated 2 February 2024 and a SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio dated 2 February 2024 as part of the amended modification application and an Urban Design Report prepared by e8urban dated 16 March 2018 forms part of the Consent.

29. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.17 of the LEP.

BASIX Certificate

30. The modification application has been accompanied by BASIX Certificate 1374312M_03, dated 16 February 2024 as required pursuant to s 27 of the EPA Regulation.

State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 4 (formerly State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55))

31. The Consent includes a Remedial Action Plan prepared by Geo-Logix dated 11 July 2018, which addresses cl 7 of SEPP 55. The parties agree that the Consent complies with the requirements of cl 7 and that the proposed development is consistent with the Consent in relation to the remediation of land.

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

32. Clause 30(2) of SEPP 65 sets out matters which the consent authority must be satisfied have been given adequate regard. In order to address these matters, and pursuant to the provisions of s 29 of the EPA Regulation, the applicant has provided a SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio dated 2 February 2024 as part of the amended modification application. The Council reviewed the SEPP 65 Design Verification, Design Principles and ADG Compliance and considered it to be satisfactory.

33. The parties submit and I accept that the proposed development has addressed those matters referred to in cl 30(2) of SEPP 65, fulfills the requirements of s 29(2) of the EPA Regulation and is consistent with the nine design principles in Sch 1 of SEPP 65, and that the site is suitable for the residential flat building in the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP)

34. As the site is located with frontage onto a rail corridor and President Avenue, which is a classified road, ss 2.99, 2.100, 2.119, 2.120 and 2.122 of the T&I SEPP apply to the proposed development.

35. The parties submit and I accept that s 2.99 (Excavation in, above, below or adjacent to rail corridors) of the T&I SEPP applies to the proposed development and that it has been satisfied by the Consent. The proposed development is consistent with the Consent in relation to excavation and is not required to be referred to the Transport for NSW (TfNSW) for comment.

36. The applicant has provided an Acoustic Report provided by koikasacoustics dated 12 December 2023 as part of the amended modification application. The parties submit and I accept that the proposed development satisfies the matters set out in s 2.100 (Impact of rail noise or vibration on non-rail development) of the T&I SEPP.

37. The parties submit and I accept that the matters set out in s 2.119(2) (Development with frontage to classified road) are satisfied as the proposed development maintains vehicular access via Willarong Road as detailed in the Traffic Management Report prepared by Loka Consulting Engineers dated 4 December 2023.

38. Section 2.120 (Impact of road noise and vibration on non-road development) of the T&I SEPP also applies to the proposed development, as it proposes residential accommodation and is located on land adjacent to a road (President Avenue) with an average annual daily traffic volume of more than 28,000 vehicles. The applicant has provided an Acoustic Report provided by koikasacoustics dated 12 December 2023 as part of the amended modification application. The parties submit and I accept that the matters set out in s 2.120(3) are satisfied.

39. The parties submit and I accept that s 2.122 (Traffic-generating development) of the T&I SEPP applies to the proposed development and that it has been satisfied by the Consent. The proposed development is consistent with the Consent and is not required to be referred to the TfNSW for comment.

Conclusion and orders

40. For the above reasons I find that the parties’ decision is within power as required by s 34(3) of the LEC Act. I now dispose of the proceedings in accordance with the parties’ decision.

40. The Court notes that the applicant will pay the Council’s costs in the amount of $20,000 within 28 days of the date of these orders.

41. The Court orders:

1. The modification application MA23/0154 is approved.

2. Development consent no. DA19/0333 is modified in the terms set out in Annexure A.

3. Development consent no. DA19/0333 as modified by the Court is Annexure B.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (307518, pdf)

Annexure B (531564, pdf)

**********

Amendments

03 April 2024 - Correction to typographical error at [11].

Decision last updated: 03 April 2024