Dignam v Sutherland Shire Council

[2020] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dignam v Sutherland Shire Council [2020] NSWLEC 1265

Hearing dates:

Conciliation conference on 11 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

See orders at [14] below

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amenity – character – parking – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Sutherland Shire Local Environmental Plan 2015

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Geoffrey Dignam (Applicant)
Sutherland Shire Council (Respondent)

Representation:

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

Solicitors:
Swaab (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/270738

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 18/1232 by Sutherland Shire Council (hereafter the Council), which as amended, now seeks the partial demolition existing structures, being external laundry and toilet block, front retaining wall and bin storage, tree removal and construction of a concrete hardstand for six parking spaces with landscaping on common property of SP8573, also known as 126 Elouera Road, Cronulla (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 June 2020. I presided over the conciliation conference. There were no objectors whom provided written submission at this conciliation. Although, it is recognised that several objectors spoke at a previous conciliation I presided over, and that was terminated. Their issues have been considered by the parties in the making of this agreement.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA’s supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal.

5. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 18/1232 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act after being satisfied, after being satisfied pursuant to s 4.15(1), to grant consent to DA 18/1232 with conditions, as described in Annexure A.

7. The parties identified the jurisdictional prerequisites of relevance to the Court in these proceedings, as consistency with the Sutherland Shire Local Environmental Plan 2015 (SSLEP), and the Sutherland Shire Development Control Plan 2015 (SSDCP). The parties advise that the DA is made with the consent of the strata owners of the site.

8. The site is located within lands described in the SSLEP. The proposed development is contained within common property of an existing two-storey residential flat building. The parties agree that the relevant provisions of the SSLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal.

9. Based on these amended plans and supporting documents to the DA, together with the conditions of consent, the contentions that relate to the controls as specified in the SSDCP are achieved to the satisfaction of the parties. The parties agree that the amended parking design and landscaping, as shown in the plans relied on, addresses any potential safety and amenity impacts raised in objection and as contentions.

10. The proposed development was publicly notified in accordance with the SSDCP. During the initial notification period, no submissions were received by Council. The oral submissions of residents made at a previous conciliation were considered by the parties, prior to reaching the agreement. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions.

11. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties.

12. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 18/1232 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

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' decision.

14. The Court orders that:

1. The Applicant is granted leave to amend its development application to:

1. rely upon the following plans and documents:

Drawing No. and Revision/Issue	Title	Prepared by	Date
Architectural plans
Drawing No. A112, Issue 1	Levels Plan	Plannedspace	30 April 2020
Drawing No. 501, Issue 4	Sections	Plannedspace	24 February 2020
Drawing No. 101, Issue 4	Site Plan – Existing / demolition	Plannedspace	22 November 2019
Drawing No. A113, Issue 3	Construction Management Plan	Plannedspace	22 November 2019
Landscaping Plans
Drawing No.000 Issue M	Coversheet	Site Image Landscape Architects	26 May 2020
Drawing No.101 Issue L	Landscape Plan	Site Image Landscape Architects	26 May 2020
Drawing No.501 Issue E	Landscaping Typical Details	Site Image Landscape Architects	6 August 2019
Engineering Plans
DA01 Revision 2	Civil Design Notes & Legend	Jones Nicholson Consulting Engineers	27 February 2020
DA02 Revision 6	Civil Design Site Stormwater Plan	Jones Nicholson Consulting Engineers	26 May 2020
DA03 Revision 3	Civil Design Stormwater Details	Jones Nicholson Consulting Engineers	20 May 2020
Other supporting documents
N/A	Addendum to Statement of Environmental Effects	NSW Town Planning	10 June 2020

2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,000.

3. The appeal is upheld.

4. DA18/1232 for the partial demolition of the external laundry/toilet block, front retaining wall and, and bin storage concrete hardstand and the construction of a new retaining wall, landscaping works and parking for 6 vehicles on the common property of SP8573 at land known as 126 Elouera Road, Cronulla, is approved subject to the conditions set out in Annexure 'A'.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (650889, pdf)

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Decision last updated: 26 June 2020