Calautti v Sutherland Shire Council

[2022] NSWLEC 1739

Land and Environment Court

New South Wales

Medium Neutral Citation:

Calautti v Sutherland Shire Council [2022] NSWLEC 1739

Hearing dates:

Conciliation conference on 16 November 2022

Date of orders:

23 December 2022

Decision date:

23 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) the Applicant is granted leave to rely on its amended application in the appeal;

(2) the appeal is upheld.

(3) development consent is granted to Development Application No. 21/0773 for the demolition of existing structures and construction of a Seniors Housing development incorporating 7 self-contained dwellings, basement parking, associated site works and strata subdivision at 45 Gannons Road, Caringbah, subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environment Planning and Assessment Regulation 2000 cl 55

Environment Planning and Assessment Regulation 2021, Sch 6 cl 3
Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.65, 11.5, 11.6, 11.7

State Environmental Planning Policy (Housing) 2021, Sch 7A

State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004, Ch 2, cll 25, 26, 28, 29, 30, 31, 32, 40, 41, 50, Div 2, Sch 3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy No 55 – Remediation of Land

State Environment Planning Policy (Transport and Infrastructure) 2021, 2.119

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guideline for Infill Development, 2004

Sutherland Shire Council, Community Engagement Policy, 2019

Sutherland Development Control Plan 2015

Category:

Principal judgment

Parties:

Felicia Calautti (Applicant)
Sutherland Shire Council (Respondent)

Representation:

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

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

File Number(s):

2022/242011

Publication restriction:

No

Judgment

1. COMMISSIONER: Felicia Calautti (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of her Development Application No. 21/0773 for the demolition of existing structures and construction of a Seniors Housing development incorporating self-contained dwellings, basement parking, associated site works and strata subdivision (the Proposed Development) at 45 Gannons Road, Caringbah (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified by the Respondent between 3 and 24 September 2022 consistent with the provisions of Sutherland Shire Council’s Community Engagement Policy 2019. One (1) submission was received in response to the notification.

4. On 7 December 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) by MS Teams and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. At the conciliation conference the Parties reached an 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 consent to the Applicant’s amended 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.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, SEPP R&H came into force, replacing the State Environmental Planning Policy No 55 – Remediation of Land;

2. section 4.6 of SEPP R&H provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated;

3. the Subject Site has a long term use for residential purposes;

4. a search of the Respondent’s GIS System has revealed no indication that the Subject Site is contaminated nor potentially contaminated;

5. the Respondent’s contaminated land register has revealed that the Subject Site has a low potential for contamination due to previous use as a former orchard/market garden;

6. the Parties advise, and I am satisfied, that that the Proposed Development does not require further investigation and is suitable for its proposed continuing residential use;

2. in relation to the provisions of State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 (SEPP BASIX):

1. the Proposed Development is a BASIX affected building as it falls within the meaning of a BASIX affected building in accordance with Sch 7 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation);

2. the Applicant has provided an amended BASIX Certificate No. 1215011M_03 in satisfaction of the requirements of this SEPP BASIX; and

3. the matters identified in the BASIX certificate are incorporated into the Parties’ agreed conditions of consent for the Proposed Development;

3. in relation to the relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. the Subject Site is located within the Georges River Catchment;

2. pursuant to the savings and transitional provisions of s 6.65 of SEPP B&C, the Proposed Development remains subject to the provisions of the former Ch 11 of SEPP B&C prior to their repeal on 21 November 2022, and in relation to this:

1. pursuant to ss 11.5 and 11.6, a consent authority must consider whether the proposed development has the potential to adversely affect the water quality, river flows, flood regime or ecosystems within the Georges River Catchment, and whether appropriate stormwater management and water quality measures are proposed; and

2. the Parties have considered the matters set out in ss 11.6 and 11.7 and are satisfied that the proposal will have no impact on the Georges River or downstream local government areas. Accordingly, the proposal is consistent with the aims and objectives of the SEPP B&C.

4. In relation to the provisions of State Environment Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I):

1. pursuant to s 2.119, a consent authority must not grant consent to an application on land located on a classified road unless it is satisfied that the development will not compromise the effective and ongoing operation and function of classified roads and that any potential impact of traffic noise and vehicle emission is prevented or reduced;

2. the Subject Site is located within 300m of the Kingsway, a classified road, and is also identified in the Respondent’s Road and Rail Noise Buffer Map;

3. an assessment of the impact of road noise and vibration on the residential accommodation within the Proposed Development is provided in the Applicant’s Environmental Noise Assessment Report prepared by Day Design dated 12 July 2022 lodged with the subject Class 1 Application; and

4. the noise levels within the residential dwellings are capable of achieving the relevant noise criteria subject to recommended construction methods;

5. in relation to the provisions of State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004 (Seniors SEPP)

1. the Applicant’s development application proposes the use of the Subject Site as a senior housing development and satisfies the definition of self-contained dwelling for seniors contained in Ch 2 of the Seniors SEPP;

2. the Seniors SEPP was repealed on 1 March 2022 and its provisions transferred to the State Environmental Planning Policy (Housing) 2021 (Housing SEPP), and:

1. under the Savings and transitional provisions in Sch7A of the Housing SEPP the provisions of the Housing SEPP do not apply to a development application made, but not yet determined, on or before the commencement date of Housing SEPP; and

2. the Proposed Development is, therefore, subject to the provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter;

3. the provisions of the Seniors SEPP continue to apply to the Proposed Development and the provisions of the Housing SEPP do not apply; and

4. an assessment of the proposed development against the provisions of the Seniors SEPP is included within the Applicant’s Statement of Environmental Effects, prepared by Planning Ingenuity dated 14 July 2021 located at Tab 4 of the Class 1 Application, and in relation to this, the Parties advise, and I am satisfied, that:

1. pursuant to cl 25, the Proposed Development provides adequate access to facilities, and specifically, the Subject Site is located within 100m of two bus stops on Gannons Road, with additional services provided within 300m of the Subject Site and taking residents to facilities located not more than 400m from the Site;

2. pursuant to cl 26, the Proposed Development is not located on bushfire prone land;

3. pursuant to cl 28, the Proposed Development has access to the relevant services, including sewer and water;

4. pursuant to cl 29, the Proposed Development is compatible with the surrounding land;

5. pursuant to cl 30, the Applicant has provided a detailed site analysis prepared by Jamisa Architects;

6. pursuant to cl 31, the Proposed Development is consistent with the Seniors Living Policy: Urban Design Guideline for Infill Development;

7. pursuant to cl 32, the Proposed Development has been designed in accordance with the Design Principles at Div 2;

8. pursuant to cl 40, the Subject Site is 1,442m², has a site frontage exceeds 20m, and the Proposed Development proposes a maximum building height of 7.98m which is below the relevant development standard applicable to the Subject Site;

9. pursuant to cl 41, the Proposed Development has not been made by a social housing provider and complies with the relevant requirements relating to self-contained dwellings set out at Sch 3;

10. pursuant to cl 50, the Proposed Development complies with the relevant building height, floor space ratio (FSR), landscape area, deep soil, solar access, private open space and parking requirements appliable to the Proposed Development on the Subject Site; and

11. the Proposed Development meets the requirements set out in the Seniors SEPP;

6. in relation to the provisions of Sutherland Shire Local Environmental Plan 2015 (SSLEP):

1. the Subject Site is located in the R2 Low Density Residential Zone under the provisions of cl 2.3 of SSLEP, and development for the purpose of a seniors housing development is permitted with consent in the R2 Low Density Residential Zone;

2. as the proposal have been lodged in accordance with the Seniors SEPP, the maximum height and FSR control provided in the SSLEP are not applicable to the Proposed Development;

3. the Subject Site is identified as being within a Class 5 acid sulfate soils (ASS) area and therefore the provisions of cl 6.1 of SSLEP are applicable, and in relation to this:

1. excavation is proposed on the site and is within 500m of adjacent Class 3 classification;

2. the Applicant’s statement of environmental effects states that the excavation is not likely to be below 5m Australian Height Datum (AHD) and is not likely to lower the water table below 1m AHD;

3. the Parties have confirmed, and I am satisfied, that there is unlikely to be an impact on the water table and, as a result, an ASS management plan is not required.

4. As the Proposed Development includes earthworks, pursuant to cl 6.2 of the SSLEP, the Respondent has considered the matters in relation to the impact of the development and the parties agree, and I am satisfied, that any potential impacts can be mitigated or avoided in accordance with the Parties agreed conditions of consent (see agreed condition 13 and 30);

5. Pursuant to the provisions of cl 6.4:

1. the Applicant’s stormwater plans demonstrate that water sensitive urban design principles have been incorporated into the design, including rainwater harvesting; and

2. the Parties agree, and I am satisfied, that the proposed management systems will not result in any adverse impacts on neighbouring sites or any waterways;

6. in relation to the provisions of cl 6.14 in relation to landscaped area, the Parties submit, and I agree, that this clause does not apply to the proposed Development due to the application of the Seniors SEPP;

7. in relation to the provisions of cll 6.16 and 6.17, the Parties confirm, and I am satisfied, that matters related to the quality of the design have been considered and the provisions of these clauses are satisfied such that the Proposed Development is consistent with the relevant principles in relation to urban design;

7. in relation to the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP), the Parties have advised, and I agree, that the Applicant’s amended development application either meets the controls in that plan or achieves the objectives of relevant controls, consistent with the provisions of s 4.15(3A) and s 4.15(1)(a)(iii) of the EP&A Act;

8. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submission of the objector which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree has been considered in the Applicant’s amended application.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. regard has been had to the objectives of the Subject Site’s R2 Low Density Residential zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

9. Further, 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 to dispose of the proceedings in accordance with the Parties’ decision.

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

12. The Court notes that:

1. pursuant to cl 55 of the former Environmental Planning and Assessment Regulation 2000, the provisions of which are saved with respect to the determination of the Applicant’s application in this appeal, Sutherland Shire Council, as the relevant consent authority, has agreed to the Applicant amending Development Application No. 21/0773;

2. the Applicant filed its amended application with the Court on 8 December 2022;

3. pursuant to cl 3(2) of Sch 6 of the Environmental Planning and Assessment Regulation 2021, the amended application does not need to be uploaded to the NSW Planning Portal;

4. notwithstanding the above point at [(3)]) the Applicant has uploaded the Amended Application onto the NSW Planning Portal on 5 December 2022.

Orders

13. The Court orders that:

1. the Applicant is granted leave to rely on its amended application in the appeal;

2. the appeal is upheld.

3. development consent is granted to Development Application No. 21/0773 for the demolition of existing structures and construction of a Seniors Housing development incorporating 7 self-contained dwellings, basement parking, associated site works and strata subdivision at 45 Gannons Road, Caringbah, subject to the conditions of consent in Annexure ‘A’.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 23 December 2022