Duke Developments Australia 2 Pty Ltd v Sutherland Shire Council

[2021] NSWLEC 1154

Land and Environment Court

New South Wales

Medium Neutral Citation:

Duke Developments Australia 2 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1154

Hearing dates:

Conciliation conference on 19 March 2021

Date of orders:

29 March 2021

Decision date:

29 March 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1) The applicant is granted leave to amend the Modification Application to rely upon the amended plans referred to in condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Modification Application MA20/0027 for a 5-storey residential flat building comprising 9 units and a strata subdivision at Lots 1 and 2 in DP 302432 known as Nos 45 - 47 Parramatta Street, Cronulla NSW is determined by the granting of consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – modification application – residential flat building – design changes – conciliation conference – agreement reached – whether substantially the same

Legislation Cited:

Environment Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Duke Developments Australia 2 Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
Paul Vergotis (Solicitor) (Applicant)
Janelle Amy (Solicitor) (Respondent)

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

File Number(s):

2020/293993

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify the development consent for the construction of a 5-storey residential flat building comprising 9 apartments over 2 levels of basement car parking, at 45-47 Parramatta Street, Cronulla. The modification application seeks to make a number of alterations to the approved design, including the extension of the balconies of units on the first, second and third floors, the relocation of the driveway crossover and bin holding area, the deletion of a front planter box, the removal of windows to the fire stairs, the extension of northern and western terraces and roof slab on the fourth floor and internal alterations to the fourth floor apartment.

2. The applicant was dissatisfied with the determination of the modification application, which was granted by the Council on 4 August 2020 but resulted in the imposition of conditions which were not acceptable to the applicant. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(1) of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 19 March 2021. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is supported by a Statement of Reasons – Jurisdictional prerequisites, which is Annexure A to the signed agreement. The decision agreed upon is for leave to amend the modification application, the grant of the modification application and the consequent amendment to the conditions the subject of the consent, pursuant to s 4.56(1) of the EPA Act. The amendments to the modification application include amendments to deal with the fence and gate, to provide screening for neighbours, treatment to the non-trafficable roof area, and to restore communal open space that formed part of the original development consent.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

• Qualitatively, the proposal results in 5-storey residential flat building comprising 9 apartments, consistent with the building approved by the development consent. The alterations do not change an essential physical element of the approved development and do not significantly qualitatively change the proposed development.

• Quantitatively, the modifications relate to changes to the design of the terraces/balconies, associated privacy screening and other design changes. These changes are not quantitatively sufficient to render the development as modified something that is not substantially the same as that for which consent was granted.

6. The modification application was notified by Council between 12 February 2020 and 27 February 2020 in accordance with s 4.56(2)(b) and (c) of the EPA Act. In response to the notification of the application, four submissions were received. I have considered the issues raised in those submissions. A number of those issues have been resolved by the inclusion of screening to protect visual privacy.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

9. The Court orders that:

1. The applicant is granted leave to amend the Modification Application to rely upon the amended plans referred to in condition 1 of Annexure A.

2. The appeal is upheld.

3. Modification Application MA20/0027 for a 5-storey residential flat building comprising 9 units and a strata subdivision at Lots 1 and 2 in DP 302432 known as Nos 45 - 47 Parramatta Street, Cronulla NSW is determined by the granting of consent subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (367941, pdf)

Architectural Plans (26260331, pdf)

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Decision last updated: 29 March 2021