Bundeena Nature Hub Pty Ltd v Sutherland Shire Council

[2025] NSWLEC 1010

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bundeena Nature Hub Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1010

Hearing dates:

Conciliation Conference held 19 December 2024

Date of orders:

14 January 2025

Decision date:

14 January 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application No 23/0201 for the demolition of existing structures and construction of a primary dwelling and secondary dwelling at No 11 Neil Street, Bundeena NSW 2230 (Lot 14, Section B, Deposited Plan 18038), is determined by grant of consent, subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.4, 5.10, 5.21, 6.1, 6.2, 6.5, 6.7, 6.8, 6.9, 6.14

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Australian Standard, AS 3959-2009 Construction of Buildings in Bushfire-prone Areas, 2009

NSW Rural Fire Service, Planning for Bush Fire Protection, 2019

Sutherland Shire Council, Community Engagement Strategy, 2022-2026

Category:

Principal judgment

Parties:

Bundeena Nature Hub Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Urban Legal (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/248144

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No 23/0201 seeking consent for the demolition of existing structures and construction of a primary dwelling and secondary dwelling (Proposed Development) at 11 Neil Street, Bundeena, legally described as Lot 4 Sec B DP 18038 (the Site).

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 has been held on 19 December 2024. I presided over the conciliation conference.

3. On 1 August 2024, the Respondent filed its Statement of Facts and Contentions filed on 1 August 2024 (SOFAC) and raised the following contentions:

1. Contention 1: Floor Space Ratio.

2. Contention 2: Streetscape character and natural setting.

3. Contention 3: Streetscape and Building Form.

4. Contention 4: Landform.

5. Contention 5: Private Open Space.

6. Contention 6: View Loss.

7. Contention 7: Built Form.

8. Contention 8: Multiple Dwelling Proposal.

9. Contention 9: Heritage.

10. Contention 10: Public Interest.

4. The parties’ agree that all Contentions raised in the SOFAC have been resolved by the preparation of the:

1. amended plans and additional information referred to in Condition 6 of Annexure A; and

2. agreed conditions of consent at Annexure A.

5. 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.

6. 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 making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. 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 to be State Environmental Planning Policy (Resilience and Hazards) 2021, Sutherland Shire Local Environmental Plan 2015 (SSLEP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

9. Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021, the DA is made with the written consent of the owner as filed with the Class 1 Application at Tab 2.

10. The Site is zoned C3 Environmental Management pursuant to the SSLEP. The Proposed Development is defined as including a “dwelling house” and a “secondary dwelling”, which are both permissible with consent in the C3 zone.

11. As a consequence of the zoning of the Site, a minimum of 40% of the Site area is to consist of landscaped areas, in accordance with the Landscape Area Map pursuant to cl 6.14(2)(g) of the SSLEP. Therefore, a minimum of area of 488.12m² must be landscaped in accordance with the landscape area development standard, given that the Site area is 1,220.3m². Drawing A310 Rev 7 shows a total landscape area of 690m² and the Proposed Development is therefore compliant with minimum landscaped area development standard pursuant to cl 6.14(3) of the LEP.

12. The Site’s topography is such that it falls from the street frontage to the rear waterfront. The Site has been identified as including a local heritage item pursuant to the SSLEP being Item number 0507, named ‘Cliff tops and slopes, and rock platform’ which is in the rear waterfront portion of the Site. The rear of the primary dwelling will extend up to the rock platform. The parties agree that the Amended DA does not affect the heritage item, in accordance with cl 5.10(4) of the SSLEP. I have also had regard to the SEE at 4.2 on p 22 and to drawing A305 Rev 05 which overlays the SSLEP Heritage map with the proposed dwelling and includes a notation “inbounded proposed lower ground floor 800mm from existing deck location to clear the heritage rock overlay” and shows the proposed floor at RL 7.00 compared with the existing deck at RL 6.58.

13. The property is affected by a Foreshore Building Line, being mapped within the foreshore area on the Foreshore Building Line Map of the SSLEP and development on land in the foreshore area is limited pursuant to cl 6.9 of the SSLEP. The Proposed Development is permitted pursuant to cl 6.9(2)(a) of the SSLEP being demolition of existing residential accommodation and the erection of new residential accommodation on the land, because the footprint of the residential accommodation will not extend further forward of the foreshore building line than the footprint of the existing residential accommodation.

14. I am satisfied, as required by cl 6.9(3) of the SSLEP that the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, will not cause environmental harm. I am also satisfied that the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, will not cause congestion or generate conflict between people using open space areas or the waterway, opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised. Further, I am satisfied that any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and that the development and resulting building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore and it has considered sea level rise or change of flooding patterns as a result of climate change.

15. The Site is mapped as being subject to an 8.5m maximum height of building (HOB) development standard pursuant to cl 4.3 of the SSLEP which is contravened by the Proposed Development due to the surveyed levels of rock crevasses within the heritage rock shelf at the rear of the Site. The Applicant relies on a Written Request pursuant to cl 4.6 of the SSLEP prepared by The Planning Hub dated 18 November 2024 to justify the contravention of the HOB development standard provided in cl 4.3 of the SSLEP.

16. The Written Request demonstrates that compliance with the development standard is unreasonable or unnecessary because notwithstanding the contravention the objectives of the development standard are achieved. The Written Request explains, and I accept that:

“The variation does not result in noticeable bulk, height or scale, as viewed from the public domain, and will not result in additional solar access, view loss or privacy and the development is consistent with the desired future character of the area.” (Written Request at 3.1 on p 7)

17. The Written Request also demonstrates that there are sufficient environmental planning grounds to justify the contravention of the development standard because the contravention represents a unique set of circumstances arising from a natural rock channel. The depth of the natural rock channel is visible in Section AA in drawing No A204 and I reproduce below Figure 2 from the Written Request which highlights in red on drawing No A106 Rev 8 the small localised area of HOB contravention arising from the natural rock channel.

18. The Court is satisfied that the Written Request seeking to justify the contravention of the development standard in cl 4.3 of the SSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SSLEP.

19. Clause 4.4 of the SSLEP and the Floor Space Ratio map permits a maximum FSR of 0.5:1 on the Site. The Amended DA has a floor space ratio of 0.45:1, which satisfies cl 4.4 of the LEP as demonstrated in drawing No A310 Rev 7.

20. Clause 5.4(9) of the SSLEP prescribes that a ‘secondary dwelling’ must not exceed 60m² or 5% of the total floor area of the principal dwelling which is satisfied as demonstrated in the calculations shown in drawing No A310 Rev 7.

21. The Site is within the flood planning area and pursuant to cl 5.21(2) of the SSLEP:

(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

22. The Applicant filed a document titled Flood Information prepared by the Respondent dated 22 November 2021 with the Class 1 at Tab 8. The Flood Information document confirms that the Site is identified as flood affected in the Bundeena Creek Floodplain Risk Management Study Plan and notes the flood risk as “low” for the Site and that the Site is not affected by the either the 1% AEP or the 5% AEP. The Flood Risk Precinct map included in the Flood Information document shows the affected area as “low risk” and the drawing No A104 Rev 3 for the Proposed Lower Ground Floor Plan includes a notation for a flood barrier in that affected area. In addition, I have considered the stormwater condition 17 in Annexure A which addresses and mitigates against erosion and other adverse environmental impacts.

23. In relation to stormwater management, cl 6.4(3) of the SSLEP requires the consent authority to be satisfied of certain matters in relation to stormwater management before development consent can be granted. I note that section 3.5 of the SEE addresses stormwater as follows:

“(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”	The Amended DA has been designed to maximise the use of water permeable surfaces on the land.
“(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and”	Not required.
“(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”	The Amended DA has been designed to avoid any significant adverse impacts as described.

24. Accordingly, I am satisfied as required by cl 5.21(2) regarding flood planning and cl 6.4(3) regarding stormwater management, of the SSLEP.

25. The Site is detailed as being Class 5 acid sulfate soils which attracts compliance with the provisions of cl 6.1 of the SSLEP. The SEE notes at Appendix A on p 3 that the Proposed Development will not disturb, expose, or drain acid sulfate soils, nor will it cause environmental damage. The parties have also agree to the terms of conditions 35 and 36 regarding acid sulfate soils unexpected finds and how to manage the development in the event acid sulfate soils are encountered during works.

26. The Proposed Development seeks consent for earthworks pursuant to cl 6.2 of the SSLEP. The parties are satisfied that that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the site and surrounding land at page 3 of Appendix 1 of the SEE (refer to Tab 3 of the Class 1 Application).

27. The Site is mapped as “Environmentally Sensitive Land” on the following maps:

1. Terrestrial Biodiversity Map of the SSLEP (cl 6.5, SSLEP);

2. Riparian Lands and Watercourses Map of the SSLEP (cl 6.7, SSLEP); and

3. Natural Landforms Map of the SSLEP (cl 6.8, SSLEP).

28. Development consent must not be granted for development on Environmental Sensitive Land unless the consent authority is satisfied that:

(a)  the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b)  if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

29. I have considered the Respondent’s assessment report at p 142, the demolition plan drawing No A060 Rev 2 and the Landscape Plans together with condition 18 and I have formed the requisite state of satisfaction that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact.

30. The Site is located in the coastal zone and is identified as being within a ‘coastal environment area’ and within a ‘coastal use area’ pursuant to Ch 2 – Coastal Management, of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). In compliance with the terms of Ch 2, the parties explain that they have:

1. considered whether the proposed development is likely to cause an adverse impact on the matters set out within s 2.10(1) and the parties are satisfied of the matters set out with s 2.10(2) of the Resilience and Hazards SEPP. The Applicant has addressed these matters at pages 16 and 17 of the Applicant’s SEE;

2. considered whether the Proposed Development is likely to cause an adverse impact on the matters set out within s 2.11(1)(a) of the Resilience and Hazards SEPP and the parties are satisfied of the matters set out in s 2.11(1)(b)(i): see page 18 of the Applicant’s SEE; and

3. taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development, in accordance with s 2.11(1)(c). The Applicant has addressed these matters at page 19 of the Applicant’s SEE.

31. Section 4.6 of the Resilience and Hazards SEPP requires consideration of contamination of the Site and suitability for the proposed use. This is adequately addressed at page 20 of the SEE which notes that the Site has been used for residential purposes for an extended period of time and there is no evidence of potentially contaminating land activities occurring on the Site. The parties are satisfied that there is no known or likely contamination at the Site. I accept that further investigation is not considered necessary in this instance and that the Site is suitable for the intended use.

32. The Site is not located in any of the regulated water catchments pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

33. The DA23/0201 as lodged was notified to adjoining and nearby owners and occupiers between 19 April 2023 and 4 May 2023 in accordance with the Respondent’s Community Engagement Strategy 2022-2026 and 12 submissions were received. The matters raised in these submissions have been considered by the parties under s 4.15(1)(d) of the EPA Act.

34. The Amended Plans were also notified to surrounding residents. Two submissions were received. The neighbour to the west was concerned about overlooking into her property. Council, as a result, imposed condition 8.2 requiring a privacy screen to be installed minimising privacy impacts. The other neighbour at 8 Neil St, Bundeena was concerned about potential view loss. The view loss analysis was shown to him along with the proposed plans. He was satisfied with the view loss impacts. However, he was concerned with a watergum being planted within the front setback and the view loss impact which that tree would have on his property. Council, as a result, imposed a different tree species in condition 18.7, this species has been changed to a Banksia serrata.

35. The Proposed Development is BASIX affected development. On 1 October 2023, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) was repealed by State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). However, the development application is saved from the application of SEPP Sustainable Buildings in accordance with s 4.2 of that SEPP.

36. A BASIX certificate was filed with the Class 1 Application at Tab 13 and compliance with BASIX commitments is required pursuant to condition 5 in Annexure A.

37. Finally, the Respondent council records indicate that the Site is bushfire prone land. The applicant relies on a BPAD accredited Practitioner Level 3 report - the Bushfire Protection Assessment dated 21 December 2022 filed with the Class 1 Application. The conditions include condition 55 requiring compliance with Section 9 BAL 12.5 Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’ and Appendix 5 of ‘Planning for Bush Fire Protection 2019’.

38. 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. I adopt the reasons given by the parties and as set out above in this judgment.

39. 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.

Notations

40. The Court notes:

1. The Respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No 23/0201 to rely on the amended plans and documents specified in the table below and referred to in Condition 1 of Annexure “A”:

Document/Plan Revision and Issue No.	Document/Plan Name	Date	Prepared by
Cover page	Architectural Plans – Cover	24.02.2023	Steve Gartsky Architect
Index page Rev 6	Architectural Plans - Index	14.11.2024	Steve Gartsky Architect
A001, Rev 2	Architectural Plans – Existing Aerial Plan	24.02.2023	Steve Gartsky Architect
A002, Rev 2	Architectural Plans – Site Analysis	24.02.2023	Steve Gartsky Architect
A003, Rev 2	Architectural Plans – Location Photos	24.02.2023	Steve Gartsky Architect
A004, Rev 2	Architectural Plans – Site Photos	24.02.2023	Steve Gartsky Architect
A050, Rev 2	Architectural Plans – Existing Plan	24.02.2023	Steve Gartsky Architect
A060, Rev 2	Architectural Plans – Demolition Plan	24.02.2023	Steve Gartsky Architect
A070, Rev 2	Architectural Plans – Setback Plan	24.02.2023	Steve Gartsky Architect
A080, Rev 6	Architectural Plans – Bulk Excavation Plan	14.11.2024	Steve Gartsky Architect
A100, Rev 4	Architectural Plans – Proposed Lower Ground Floor Plan – 1:200	31.10.2024	Steve Gartsky Architect
A101, Rev 5	Architectural Plans – Proposed Ground Floor Plan – 1:200	31.10.2024	Steve Gartsky Architect
A102, Rev 5	Architectural Plans – Proposed Level 1 Plan – 1:200	31.10.2024	Steve Gartsky Architect
A103, Rev 5	Architectural Plans – Roof Plan – 1:200	31.10.2024	Steve Gartsky Architect
A104, Rev 5	Architectural Plans – Proposed Lower Ground Floor Plan – 1:100	14.11.2024	Steve Gartsky Architect
A105, Rev 7	Architectural Plans – Proposed Ground Floor Plan – 1:100	14.11.2024	Steve Gartsky Architect
A106, Rev 8	Architectural Plans – Proposed Level 1 Floor Plan – 1:100	14.11.2024	Steve Gartsky Architect
A107, Rev 8	Architectural Plans – Proposed Roof Plan – 1:100	14.11.2024	Steve Gartsky Architect
A108, Rev 1	Architectural Plans – Front Setback Plan – 1:100	31.10.2024	Steve Gartsky Architect
A200, Rev 6	Architectural Plans – North / South Elevation	14.11.2024	Steve Gartsky Architect
A201, Rev 7	Architectural Plans – East Elevation	14.11.2024	Steve Gartsky Architect
A202, Rev 7	Architectural Plans – West Elevation	14.11.2024	Steve Gartsky Architect
A203, Rev 7	Architectural Plans – Courtyard Elevations	14.11.2024	Steve Gartsky Architect
A204, Rev 7	Architectural Plans – Section AA	14.11.2024	Steve Gartsky Architect
A205, Rev 7	Architectural Plans – Section BB	14.11.2024	Steve Gartsky Architect
A300, Rev 4	Architectural Plans – Winter Solstice Plans	31.10.2024	Steve Gartsky Architect
A301, Rev 4	Architectural Plans – Winter Solstice Plans	31.10.2024	Steve Gartsky Architect
A302, Rev 4	Architectural Plans – Winter Solstice Plans	31.10.2024	Steve Gartsky Architect
A303, Rev 4	Architectural Plans – Winter Solstice Plans	31.10.2024	Steve Gartsky Architect
A304, Rev 3	Architectural Plans – Construction Management Plan	16.02.2024	Steve Gartsky Architect
A305, Rev 5	Architectural Plans – Heritage Map Overlay	31.10.2024	Steve Gartsky Architect
A306, Rev 6	Architectural Plans – Material Schedule	14.11.2024	Steve Gartsky Architect
A307, Rev 6	Architectural Plans – Imagery	14.11.2024	Steve Gartsky Architect
A308, Rev 5	Architectural Plans – Imagery	14.11.2024	Steve Gartsky Architect
A309, Rev 7	Architectural Plans – Window Schedule	13.11.2024	Steve Gartsky Architect
A310, Rev 7	Architectural Plans – Calculations	14.11.2024	Steve Gartsky Architect
A311, Rev 5	Architectural Plans – Equinox Plans	31.10.2024	Steve Gartsky Architect
A312, Rev 5	Architectural Plans – Equinox Plans	31.10.2024	Steve Gartsky Architect
A313, Rev 5	Architectural Plans – Summer Solstice Plans	31.10.2024	Steve Gartsky Architect
A314, Rev 5	Architectural Plans – Summer Solstice Plans	31.10.2024	Steve Gartsky Architect
A315, Rev 3	Architectural Plans – Fire Pit Detail	14.11.2024	Steve Gartsky Architect
24-271 - V.1	Clause 4.6 Height Submission	18.11.2024	The Planning Hub

Orders

41. The Court orders:

1. The appeal is upheld.

2. Development Application No 23/0201 for the demolition of existing structures and construction of a primary dwelling and secondary dwelling at No 11 Neil Street, Bundeena NSW 2230 (Lot 14, Section B, Deposited Plan 18038), is determined by grant of consent, subject to the conditions set out in Annexure “A”.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 14 January 2025