Cronulla Golf Club v Sutherland Shire Council

[2023] NSWLEC 1721

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cronulla Golf Club v Sutherland Shire Council [2023] NSWLEC 1721

Hearing dates:

Conciliation conference on 21 November 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number DA22/1015, as amended, for alterations and additions to the existing club house on the site and construction of a two storey building for the purpose of storage and as a members facility at 19-27 Hume Road Cronulla, being lots 1 and 2 in DP 1001050, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – recreational facility (outdoor) – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Industry and Employment) 2021, Ch 3

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

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.5, Sch 5

Category:

Principal judgment

Parties:

Cronulla Golf Club (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/63321

Publication restriction:

Nil

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 deemed refusal of development application no DA22/1015 for alterations and additions to the existing club house and construction of a two storey building for the purpose of storage and as a members facility (development application) at 19-27 Hume Road Cronulla legally described as Lots 1 and 2 in DP 1001050 (site).

2. The proceedings were set down for a hearing on 21 November 2023. Following the joint conferencing of the experts, further changes to the plans and other documentation and agreed conditions of consent, the parties agreed that the contested issues have been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 21 November 2023. I have presided over the conciliation conference.

4. The respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the applicant amending Development Application No DA22/1015 in accordance with the documents listed at [30] (amended application). 

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 for the amended application and granting development consent to the amended application subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

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

Jurisdictional Prerequisites

9. 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 the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owners consent accompanied the development application.

11. The respondent notified the development application between 24 November 2022 to 8 December 2022. 17 submissions were received, and the parties have considered the concerns raised.

12. The parties advised the Court that an informal notice of amended plans was provided to residents on 17 November 2023.

13. At the commencement of the hearing, the Court and parties heard oral concerns from five objectors regarding:

• View loss from residential apartments to the open space and landscaped areas;

• Traffic, parking and safety, including parking over or close to driveways;

• Wellbeing;

• Privacy between the new building and residential apartments;

• Noise impacts from the proposed uses, new building and club users arriving;

• Light pollution;

• Decrease in property values;

• Solar access / overshadowing;

• Construction noise, vibration and road/path closure impacts;

• Other land being available on the site to accommodate the new building;

• Ongoing concerns regarding other matters relating to the current use such as current parking, light pollution, golf balls, noise and out of hours deliveries.

14. As set out in the jurisdictional statement, Sutherland Shire Council as the relevant consent authority, has considered the concerns raised by the written and oral objections in reaching agreement.

Sutherland Shire Local Environmental Plan 2015

15. The site is zoned RE2 Private Recreation under the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development for recreational facility (indoor), recreational facilities (outdoor) and registered clubs (the alterations and additions to the existing club) are permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

16. Clause 4.3 Height of Buildings permits a maximum height of 9m. On the basis of the architectural plans, Sheet 08, within the conditions of consent at Annexure A, I accept the parties’ agreement that the proposed development complies with a maximum height of 7.68m.

17. Clause 4.4 Floor Space Ratio (FSR) permits a maximum FSR of 0.45:1. On the basis of the architectural plans, Sheet 02, within the conditions of consent at Annexure A, I accept the parties’ agreement that the proposed development complies at 0.0094:1.

18. Clause 5.10 Heritage Conservation applies as the street plantings within the Hume Road boundary to the Cronulla golf course are a local heritage item (Sch 5, Item 1031). The amended application includes the removal of two of the heritage listed trees. On the basis of the Heritage Impact Statement prepared by NBRS dated 22 July 2022 and the heritage referral prepared by the respondent dated 28 February 2023 (heritage referral), I accept that the parties have adequately considered the provisions of cl 5.10.

19. Clause 6.1 Acid Sulfate Soils applies. I accept the parties’ agreement on the basis of the Acid Sulfate Soils Assessment Review prepared by Canopy Enterprises dated 9 August 2022 and conditions of consent at Annexure A that the provisions have been satisfied.

20. Clause 6.2 Earthworks applies. I accept that the parties have adequately considered the provisions of cl 6.2 on the basis of the Geotechnical Report prepared by Green Geotechnics dated 7 October 2020, the stormwater plans at Annexure A and the conditions of consent at Annexure A.

21. Clause 6.4 Stormwater Management applies. I accept the agreement of the parties that the clause is satisfied on the basis of the stormwater plans and conditions of consent, both at Annexure A.

22. Clause 6.5 Environmentally Sensitive Land – Terrestrial Biodiversity applies to the site. On the basis of the Statement of Environmental Effects prepared by Planning Ingenuity dated 2 September 2022 (SEE), I accept the agreement of the parties that the provisions have been satisfied and the proposed development avoids adverse environmental impacts to terrestrial biodiversity.

23. Clause 6.7 Environmentally Sensitive Land – Riparian Land and Watercourses applies to the site. On the basis of the SEE, I accept the parties’ agreement that the development satisfies the provisions to avoid environmental impacts on the watercourse.

State Environmental Planning Policy(Biodiversityand Conservation) 2021

24. Chapter 2, Vegetation in non-rural areas applies as the proposal includes removal of two trees. The parties agree and with consideration of the heritage and landscape referrals prepared by the Respondent, I accept that the provisions have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

25. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The parties agree and I accept that there is no evidence that the land is contaminated given the long standing use as a golf course, in accordance with s 4.6(1).

State Environmental Planning Policy (Industry and Employment) 2021

26. Chapter 3 of Advertising and Signage applies as the amended application includes business identification signage towards Eloura Road. The parties agree and I accept that the provisions of Ch 3 are satisfied on the basis of the SEE.

Conclusion

27. 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.

28. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

29. 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.

30. The Court notes that the respondent has approved, as the relevant consent authority, under s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No DA22/1015 to rely upon the following document:

• Amended Plan of Management dated 21 November 2023

31. The Court notes the respondent’s reasons for the grant of consent contained with the conditions of consent at Annexure A. The Court notes the s 34 agreement was submitted to the Court on 21 November 2023.

Orders:

32. The Court orders:

1. The appeal is upheld.

2. Development application number DA22/1015, as amended, for alterations and additions to the existing club house on the site and construction of a two storey building for the purpose of storage and as a members facility at 19-27 Hume Road Cronulla, being lots 1 and 2 in DP 1001050, is determined by the grant of development consent subject to the conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A 

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Decision last updated: 29 November 2023