Doherty v Sutherland Shire Council

[2021] NSWLEC 1141

Land and Environment Court

New South Wales

Medium Neutral Citation:

Doherty v Sutherland Shire Council [2021] NSWLEC 1141

Hearing dates:

Conciliation conference on 25 and 26 February 2021

Date of orders:

19 March 2021

Decision date:

19 March 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) The development application DA20/0318 for the construction of a new dwelling (comprising alterations and additions to an existing dwelling) on Lot 1 in DP522852 known as 28 Bulls Road, Burraneer is approved, subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.5, 4.16, 4.17, 8.7

Environmental Planning and Assessment Regulation 2000 cl 97A

Land and Environment Court Act 1979 ss 34, 34AA

State Environmental Planning Policy (Coastal Management) 2018 cll 13,14, 15, 16

State Environmental Planning Policy No 55 – Remediation of Land cl 7

Sutherland Shire Local Environmental Plan 2015 cll 4.3, 4.4, 6.1, 6.9, 6.14

Category:

Principal judgment

Parties:

David Doherty (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Applicant)
J Amy (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/215992

Publication restriction:

None

Judgment

1. COMMISSIONER: This appeal, pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act), has been brought against Council’s deemed refusal of DA20/0318 (PAN-13871). The development application seeks approval for the construction of a new dwelling, comprising alterations and additions to an existing dwelling, on Lot 1 in DP522852, 28 Bulls Road, Burraneer.

2. The Court, under Class 1 jurisdiction, has the power to determine these proceedings under s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25-26 February, 2021. I presided over the conciliation conference.

4. Following amendments to the relevant architectural and landscape drawings prior to the conciliation conference, the parties agreed that the plans now relied upon had resolved all issues except for contention 1: that the proposed development was a ‘new building’, not ‘alterations and additions’ as described in the development application.

5. Further to the evidence of the Planning Experts in their joint report and submissions made by the Respondent on the day, I accept that the development application would not have been assessed differently were it lodged as a ‘new building’ rather than ‘alterations and additions’, and that the amendments made to the proposed development prior to the conciliation would have been requested in either case. I further accept the parties’ submissions that this contention is resolved by a modification to the wording of the Class 1 development application. Leave was subsequently granted to amend the description of the development application from ‘alterations and additions to existing dwelling’ to ‘the construction of a new dwelling (comprising alterations and additions to an existing dwelling)’.

6. Subsequently, at the conciliation conference, on the basis of amended plans, 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. A signed agreement in accordance with s 34(10) of the LEC Act was filed on 26 February 2021.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it 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. 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 in a written statement, from which I note the following:

8. The Applicant in these proceedings is the Applicant of the Development Application, and the owner of the Subject Site. No further landowner’s consent is required.

9. The Subject Site is zoned E4 – Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development of a dwelling house is permitted with development consent in the E4 zone in accordance with the Land Use Table in Part 2 of the SSLEP.

10. The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the SSLEP E4 ­­­– Environmental Living are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

11. In the Statement of Environmental Effects of the Class 1 Application, the ‘SSLEP 2015 Compliance Table’ (Appendix C) details the reasons the proposed development is consistent with the above E4 zone objectives. Based on the amended Architectural and Landscape drawings and the proposed Conditions of Consent, I am satisfied that these reasons are accurate and that the proposed development will be consistent with the objectives of the Zone.

12. The proposed development complies with the relevant Principal Development Standards of the SSLEP: cl 4.3 Height of Buildings; cl 4.4 Floor Space Ratio; cl 6.9 Limited Development on Foreshore Area, and; cl 6.14 Landscaped Areas in Environmental Protection Zones, as demonstrated by the drawings and confirmed in the Statement of Environmental Effects.

13. Pursuant to SSLEP cl 6.1, the Subject Site is mapped as Class 5 on the Acid Sulfate Soils Map, and adjacent to Class 1. Under this class, development consent is required for works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Based on the architectural plans and the submission of the Applicant, I accept that, due to the retention of a substantial amount of the existing built form including the ground floor slab, no substantial excavation will occur and the proposed development will not result in any detrimental effect on the existing drainage patterns, vegetation, sedimentation and soil stability in the immediate vicinity, and therefore an acid sulfate management plan is not required. Furthermore, condition 11 of Annexure A is included to satisfactorily manage the incidence of unexpected acid sulfate soils on site.

14. Repair to the existing sea wall across the eastern boundary of the site is required. This wall is located partly above and partly below the mean high water mark (MHWM), placing the latter portion on Crown Lands. Development consent is required to undertake development within Crown Lands, however the Parties agree and I accept that, these works do not constitute ‘development’ for the purposes of s 1.5 of the EPA Act, and that repairs to an existing wall are not controlled in this case by any environmental planning instrument. Subsequently, the proposed repair to this sea wall can be the subject of a condition of consent under ss 4.16 and 4.17 of the EPA Act. The relevant condition is included at Condition 4 of Annexure A.

15. The Development Application was appropriately notified by the Respondent pursuant to Schedule 1 of the EPA Act. At the end of the initial notification period, one submission of objection was received, and a further objection was raised subsequent to the notification of amended plans. The Parties submit that the substantive issues raised in both submissions are accommodated and ameliorated by the amended plans. I accept these submissions based on the evidence of the Joint Report, observations at the site view as directed by the Applicant, and the resulting modifications demonstrated in the amended Architectural and Landscape Plans.

16. The Development Application has been assessed under the provision of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). Pursuant to cl 7 of SEPP 55, the Respondent submits and I accept that the land is suitable for use, based on the evidence provided in the Statement of Facts and Contentions which demonstrates that the land has always been used for residential purposes, does not contain contaminated land and does not require remediation.

17. Pursuant to cl 97A of the Environmental Planning and Assessment Regulation 2000 (NSW) (Regulation), a BASIX Certificate has been issued that applies to the proposed development, and is included in the Class 1 Application.

18. The proposed development has been assessed under the State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP), which applies to the site. Based on the evidence in the joint report, Statement of Environmental Effects, architectural drawings and landscape drawings, I have considered the requirements of the relevant clauses, Coastal SEPP cll 13, 14 and 15, noting that no development is proposed below the Foreshore Building Line, and am satisfied that the requirements of this instrument have been met. In particular, I note the following:

1. Pursuant to Coastal SEPP cl 13, based on the evidence of the Joint Experts Report and the Statement of Environmental Effects, as well as the architectural and landscape plans, I have considered and am satisfied that the proposed development is designed, sited and will be managed to avoid an adverse impact on the items listed in cl 13(1).

2. Pursuant to Coastal SEPP cl 14, I have considered whether the proposed development is likely to cause an adverse impact on any of the items listed in cl 14(1)(a) and am satisfied that the development is designed, sited and will be managed to avoid these impacts. Furthermore, I am satisfied based on the submission of Council’s Arborist during conciliation that the tree species required by Council within the foreshore area have been selected and sited to enhance the visual amenity and scenic qualities of the coast.

3. Pursuant to Coastal SEPP cl 15, I am satisfied again based on the evidence listed above that the proposed development is not likely to cause increased risk of coastal hazard, because there is no development below the foreshore building line, and the building envelope includes only minor variations from that which is existing.

4. Pursuant to Coastal SEPP cl 16, no applicable certified coastal management program applies to the site.

19. An existing drainage easement follows the southern boundary of the site. I am satisfied that the architectural and landscape plans demonstrate there will be no impact on the use of this easement to drain water.

20. 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.

21. 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.

22. The Court orders:

1. The Appeal is upheld.

2. The development application DA20/0318 for the construction of a new dwelling (comprising alterations and additions to an existing dwelling) on Lot 1 in DP522852 known as 28 Bulls Road, Burraneer is approved, subject to the conditions at Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (292395, pdf)

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Decision last updated: 19 March 2021