Burgess v Sutherland Shire Council

[2021] NSWLEC 1281

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burgess v Sutherland Shire Council [2021] NSWLEC 1281

Hearing dates:

Conciliation conference on 8, 20 and 29 April 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) The Applicant is granted leave to rely on an amended development application incorporating the following:

(a) Architectural Plans prepared by Cad Draft Pty Ltd, revisions A, dated 19 April 2021 and drawing Nos A000, A101 to A116.

(b) Plan of Management prepared by Julie Bates dated April 2021.

(c) Written request prepared pursuant to cl 4.6 of Sutherland Shire Local Environmental Plan 2015 prepared by ABC Planning Pty Ltd and dated April 2021.

(d) Building Code of Australia Report prepared by National BCA and dated 12 April 2021.

(e) Access Report prepared by Accessibility Solutions (NSW) Pty Ltd and dated 19 April 2021.

(f) Planning Statement prepared by ABC Planning Pty Ltd and dated 16 April 2021.

(g) Parking surveys dated 13 April 2021 undertaken between 5am and 6am.

(h) Waste Management Plan prepared by Cad Draft Pty Ltd.

Annexure “A” is a copy of the amended plans and reports.

(2) The written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 in relation to clause 6.15 Landscaped Area is upheld.

(3) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(4) The Appeal is upheld.

(5) Development application DA20/0632 for alterations and additions to an approved sex services premises and extended hours of operation at 18 Box Road Caringbah is approved, subject to the conditions in Annexure “B”.

Catchwords:

DEVELOPMENT APPLICATION – sex services premises – cl 4.6 variation to landscaped area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Ashlee Anne Burgess (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/362856

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Sutherland Shire Council (Council) of Development Application DA20/0632 (the DA). The DA sought consent for internal alterations and additions to an approved sex services premises, plus new carport awning and mezzanine storage structure, and extension of operating hours. In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 752.5m² allotment of land at 18 Box Road Caringbah, identified as Lot 50 Sec E DP 8529 (the site). The DA was submitted to the Council on 13 August 2020 and notified between 19 August 2020 and 10 September 2020, resulting in the receipt of one public submission. On 10 November 2020 the Applicant lodged with Council a written request pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) in response to a non-compliance with the cl 6.14 landscaped area development standard.

3. On 22 December 2020 the Applicant filed this Class 1 Appeal on the basis of a deemed refusal of the DA. On 2 February 2021 the DA was considered and refused, under authority delegated, by Council’s Local Planning Panel. On 15 February 2021 the Council filed its Statement of Facts and Contentions (SOFC).

4. The Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), held on 8, 20 and 29 April 2021. The proceedings commenced with a site view attended by me and representatives of the parties. No oral submissions were taken on site, although a copy of the written submission was provided to the Court prior to the conference.

5. At the conclusion of the s34 conference on 29 April 2021 the parties had reached an agreement based on amendments made to the DA by the Applicant to address matters raised in the SOFC, by Council during the s34 conference and in the public submission. A final copy of the s34 agreement, the draft conditions of consent forming Annexure A of the agreement, the amended architectural plans and an amended cl 4.6 request to vary the landscaped area development standard were filed that day.

6. The main changes between the DA refused by Council’s Local Planning Panel and the amended DA the subject of the s34 agreement are:

1. The proposed mezzanine storage level located on the southern half of the awning-enclosed rear parking area has been removed.

2. All structures within the right of carriageway on the eastern side of the building have been removed.

3. The number of parking spaces has increased from 7 to 8. The additional space is located within the building, accessed off the rear parking area.

7. 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 relevant jurisdictional matters and agreed that the amended plans, reports and proposed conditions satisfactorily address the contentions raised in the SOFC.

Satisfaction of jurisdiction

8. There are no jurisdictional constraints to the Court exercising its function under s 34(3) of the LEC Act, for the reasons set out below. In relation to the SSLEP the relevant considerations are:

1. The development is for the purposes of a ‘sex service premises’, which is permissible with consent in the IN1 General (IN1 Zone) and is consistent with the objectives of the IN1 Zone.

2. The development complies with the height of buildings development standard (at cl 4.3 of the SSLEP) and the floor space ratio development standard (cl 4.4). It does not comply with the landscaped area development standard (cl 6.14), which is addressed in [9]-[11] below.

3. The site is located within an area identified as Class 3 land on the Acid Sulfate Soils Map associated within cl 6.1 of the SSLEP. The proposal, however, does not involve works more than 1m below the natural ground surface or which are likely to lower the watertable by more than 1m, and therefore cl 6.1 does not apply. Similarly cl 6.2 relating to Earthworks does not apply.

4. The subject property is at or below the flood planning level and cl 6.3 Flood Planning of SSLEP is therefore a relevant consideration. The parties have agreed on conditions of development consent which require the front fence and rear awning structure to be designed so as not to impede floodwater. These conditions are condition No 10A to 10C of Annexure B of the s34 agreement. Accordingly, the development, subject to the aforementioned conditions, is satisfactory in terms of the matters specified in cl 6.3(3) of SSLEP, namely it:

(a) is compatible with the flood hazard of the land; and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

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

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

5. The subject property is within an industrial zone, and as such cl 6.4 Stormwater Management is a relevant consideration. Given the minor nature of the works, and the reliance on the previously approved stormwater management systems, and as agreed between the parties, the provisions of cl 6.4(3) of SSLEP have been addressed.

6. Clause 6.16 Urban design - general of the SSLEP is relevant to all development within the Sutherland Local Government Area and the Court must consider the matters contained within cl 6.16(1). The proposed development largely involves internal works, with only minor external building work. The parties agree that the Court, in considering these matters, would not refrain from granting development consent for reasons of urban design.

7. As the proposed development involves a sex service premises, cl 6.22 Location of sex service premises is relevant to the Court’s consideration of the application. The subject property can be viewed from a premises that is regularly frequented by children, being a martial arts academy located at Unit 30, No 3 Box Road, Caringbah. The Court must therefore consider “the impact of the development and its hours of operation” on the martial arts academy. The parties agree that the proposed development and its hours of operation would have an acceptable impact on the martial arts academy for the following reasons:

1. The additional hours proposed (2:00am to 6:00am) occur when the martial arts academy is closed.

2. A condition of consent (number 25A) limits the number of consultation rooms in operation between 10:00am to 5:00pm to six, being the same number of rooms approved under the existing consent.

3. Views of the brothel, from the martial arts academy would be restricted to the front parking area. The development application proposes the erection of a front boundary fence that would screen views of the car park.

4. The brothel has operated from this location since 2003, prior to the establishment of the martial arts academy and without complaint from the martial arts academy.

9. Pursuant to cl 6.14 of the SSLEP at least 10% of the site area is to be landscaped area. The site currently contains 0% landscaped area and no change is proposed. The parties agree that the written request seeking a variation to the landscaped area standard, prepared pursuant to cl 4.6 of the SSLEP, prepared by ABC Planning Pty Ltd and dated April 2021 (the clause 4.6 variation request) adequately addresses all mandatory matters in cl 4.6, is well founded and should be upheld.

10. For the reasons contained in the clause 4.6 variation request, I am satisfied that the applicant’s written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the SSLEP are therefore satisfied.

11. I am also satisfied, for the reasons set out in the clause 4.6 variation request, that it has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the IN1 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the SSLEP are therefore satisfied.

12. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and cl 7 requires consideration of any contamination and associated remediation. The development involves largely internal works, does not involve any excavation, and there is no history to suggest the site is contaminated. The parties agree no further assessment is required.

Disposal of proceedings in accordance with the parties’ decision

13. 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’ agreement.

14. The Court orders:

1. The Applicant is granted leave to rely on an amended development application incorporating the following:

1. Architectural Plans prepared by Cad Draft Pty Ltd, revisions A, dated 19 April 2021 and drawing Nos A000, A101 to A116.

2. Plan of Management prepared by Julie Bates dated April 2021.

3. Written request prepared pursuant to cl 4.6 of Sutherland Shire Local Environmental Plan 2015 prepared by ABC Planning Pty Ltd and dated April 2021.

4. Building Code of Australia Report prepared by National BCA and dated 12 April 2021.

5. Access Report prepared by Accessibility Solutions (NSW) Pty Ltd and dated 19 April 2021.

6. Planning Statement prepared by ABC Planning Pty Ltd and dated 16 April 2021.

7. Parking surveys dated 13 April 2021 undertaken between 5am and 6am.

8. Waste Management Plan prepared by Cad Draft Pty Ltd.

Annexure “A” is a copy of the amended plans and reports.

2. The written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 in relation to clause 6.15 Landscaped Area is upheld.

3. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

4. The Appeal is upheld.

5. Development application DA20/0632 for alterations and additions to an approved sex services premises and extended hours of operation at 18 Box Road Caringbah is approved, subject to the conditions in Annexure “B”.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (5398187, pdf)

Annexure B (218609, pdf)

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Decision last updated: 24 May 2021