Choker v Sutherland Shire Council

[2024] NSWLEC 1465

Land and Environment Court

New South Wales

Medium Neutral Citation:

Choker v Sutherland Shire Council [2024] NSWLEC 1465

Hearing dates:

Conciliation conference on 26 July 2024

Date of orders:

02 August 2024

Decision date:

02 August 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number DA23/0613, as amended, for the demolition of existing structures and construction of a dual occupancy with swimming pools and strata subdivision, for Lot 22 DP 203716, commonly known as 18 Binaville Ave Burraneer, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dual occupancy – 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

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Shire Local Environmental Plan 2015, cll 2.5, 4.1B, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17, Sch 1 cl 28

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

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

Texts Cited:

Sutherland Shire Council Community Engagement Strategy 2022-2026

Category:

Principal judgment

Parties:

Ramzay Choker (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
G Hugo (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/31733

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Sutherland Shire Council, of DA 23/0613 which seeks consent for the demolition of existing structures and construction of a dual occupancy dwelling with swimming pools and strata subdivision at 18 Binaville Ave, Burraneer, Lot 22 DP 203716

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 26 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 Regulation 2021 (EPA Reg), the Council agreed to the applicant amending the development application. These amendments included:

1. An increase in landscaping to the site, and amendments to the external general arrangement including paths.

2. The provision of two driveways to allow for the retention of an existing mature tree.

3. Amendments to the built form to reduce the visual bulk.

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, however 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, and from this I note the following points.

Jurisdictional matters

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

8. The application was adequately notified from 17 October – 1 November 2023, in accordance with the Sutherland Shire Council Community Engagement Strategy 2022-2026, during which time five submissions were received. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions. Further, 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 dual occupancy (attached) is prohibited in the zone. However, pursuant to SSLEP cl 2.5 and subsequently, Sch 1 cl 28, development for the purpose of dual occupancies is permitted with development consent if the area of the lot is equal to or greater than 700m². The subject site has an area of 872.2m², and so the proposed development is subsequently permissible with consent. The parties submit, and I accept that the proposed development is consistent with the objectives of the C4 zone.

10. SSLEP cl 4.1B provides for ‘Minimum lot sizes for strata subdivisions of dual occupancies in certain conservation zones’. Pursuant to cl 4.1B(2)(a), the strata subdivision can occur as the site area is greater than the 700m² minimum lot size.

11. Pursuant to SSLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard with a maximum height of 7.24m.

12. SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development complies with this development standard with a maximum FSR of 0.491:1.

13. The site is not identified as a heritage item, nor located within a heritage conservation area pursuant to cl 5.10 of the SSLEP.

14. Pursuant to SSLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map. Based on the parties’ submission, the Statement of Environmental Effects by Wynne Planning, dated September 2023 (SEE), and the architectural sections A0301 and A0302 rev E by EMK Architects, I accept that the proposed works will not be below 5m Australian Height Datum (AHD) and are not likely to lower the water table below 1 metre AHD, and subsequently that the requirements of this clause are satisfied.

15. The proposed development includes the construction of a basement, for which earthworks are required. Based on the parties’ submission and the architectural drawings, rev E by EMK Architects (the architectural drawings), I accept that the matters pertaining to earthworks listed in SSLEP cl 6.2 have been considered and adequately addressed.

16. From the parties’ submissions, the architectural drawings and the amended stormwater management plans by NY Civil Engineering rev B dated 8 May 2024, pursuant to SSLEP cl 6.4, I accept that the development:

1. is designed to maximise the use of water permeable surfaces;

2. provides for the on-site detention and retention/re-use of collected stormwater, and;

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

17. The site is not identified as ‘environmentally sensitive land’ for the purposes of SSLEP cll 6.5, 6.6, 6.7 or 6.8.

18. SSLEP cl 6.14 sets a minimum landscaped area percentage for the site of 40%, which the development meets with a landscaped area of 40.07%.

19. Based on the parties’ submissions, the architectural drawings, and the information contained in the SEE, I accept that the considerations regarding general urban design and urban design for residential accommodation, as set out in SSLEP cll 6.16 and 6.17 respectively, have been considered and adequately addressed in the amended application.

20. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the SEE and the parties’ submission, I accept that the subject site has been historically used for residential purposes, and there is no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential use.

21. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004 and the requirement of cl 27 of the EPA Reg. Compliance with the commitments within this certificate is further required through a condition of consent.

Conclusion

22. 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The Court notes:

1. Sutherland Shire Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending development application DA23/0613 in accordance with the following documents:

1. Architectural Plans prepared by EMK Architects, Revision E, dated 20 June 2024:

1. DA0000 – Cover Sheet;

2. DA0002 – Site Analysis Plan;

3. DA0003 - Window Schedule and BASIX;

4. DA0004 - Demolition Plan;

5. DA0005 - Site Plan;

6. DA0006 - Concept Subdivision Plan;

7. DA0007 - Basement Plan;

8. DA0102 - Ground Floor;

9. DA0103 - Level 01;

10. DA0105 - Roof Plan;

11. DA0109 – Driveway Plan;

12. DA0201- Elevations – Sheet 1;

13. DA0203 - Elevations – Sheet 2;

14. DA0301 - Sections Sheet 1;

15. DA0302 - Sections Sheet 2;

16. DA0501- Calculation Plans;

17. DA0605 - Shadow Diagrams;

18. DA5000 - Colour Schedule Sheet 1;

19. DA5002 - Colour Schedule Sheet 2

2. Landscape Plans prepared by Michael Sui Landscape Architects, revision D dated 28 June 2024.

1. L-01 – Cover Sheet;

2. L-02.1 – Landscape Plan Ground ½;

3. L-02.2 – Planting Plan Ground ½;

4. L-03.1 - Landscape Plan Ground 2/2;

5. L-03.2 – Planting Plan Ground 2/2;

6. L-04 – Level 1 Landscape Plan;

7. L-05 - Planting Details;

8. L-06 - Planting Palette;

9. L-07 - Existing Tree;

10. L-08 - Notes;

11. L-09 - Specification

3. Stormwater Management Plan prepared by NY Civil Engineering, Revision B, dated 8 May 2024 as follows:

1. D1 – Details, Notes and Legend;

2. D2 – Stormwater Management Basement Plan;

3. D3 – Stormwater Management Plan;

4. D4 – Stormwater Management First Floor/ Roof Plan;

5. D5 – Driveway Design;

6. D6 – Swept Path Templates;

7. D7 – Stormwater Details;

8. D8 - Stormwater Details;

9. D9 - Sediment Control Plan;

10. D10 - Sediment Control Details

4. BASIX Certificate No. 1415668M_03, dated 28 June 2024.

24. The Court orders:

1. The appeal is upheld.

2. Development application number DA23/0613, as amended, for the demolition of existing structures and construction of a dual occupancy with swimming pools and strata subdivision, for Lot 22 DP 203716, commonly known as 18 Binaville Ave Burraneer, is determined by the grant of development consent subject to the conditions in Annexure A.

……………………….

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 05 August 2024