Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1559

Hearing dates:

Conciliation conference 12 September 2022, 21 September 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Modification Application No. MA/22/0105, to modify the development consent to Development Application No. DA18/1391 granted by the Respondent on 21 July 2020 relating to land at 11 and 13 Tonkin Street, Cronulla (Lots 1 to 6 S/P 1008 and Lots 1 to 10 S/P 294) is approved subject to the conditions at Annexure A.

(3) As a consequence of Order (2), the development consent to Development Application No. DA18/1391 is now subject to the conditions in the form of Annexure B.

Catchwords:

APPEAL – modification application – modification to roof top terrace on residential flat building – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9

Environmental Planning and Assessment Regulation 2021, cll 100, 102, 113

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Duke Developments Australia 4 Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/156229

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a modification application to make changes to an approved roof terrace which forms part of development consent DA18/1391, for the construction of a residential flat building at 11-13 Tonkin Street, Cronulla. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). Whilst the form lodged with Sutherland Shire Council for the modification application indicated that the application was made pursuant to s 4.56 of the EPA Act, it is instead made pursuant to s 4.55(2). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 12 September 2022. I presided over the conciliation conference.

3. Following 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 signed agreement was subsequently filed on 14 September 2022, and was supported by further documents provided by email on 23 September 2022.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The agreement is reached on the basis of an amendment to the modification application that was lodged on the NSW Planning Portal and accepted by the respondent pursuant to cl 113 of the of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).

5. As the presiding Commissioner, I am satisfied that the decision agreed upon by the parties is a decision 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 a residential flat building consistent with the building approved by the development consent. Both the approved development and the proposed modified development include a roof terrace for the penthouse apartment. There is no essential element of the development the subject of the consent that is being altered by the modification application.

• Quantitatively, the proposed residential flat building as modified provides a relatively small increase in gross floor area with the inclusion of a toilet on the roof terrace. Although there is an increase in the extent of built form elements that exceed the height development standard, the additional exceedance would not be discernible to the casual observer.

6. The modification application was notified by Council in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one submission was received. I have considered the issues raised in that submission, as well as the issues raised by the objectors who made submissions on site. The inclusion of screening vegetation and the increased setback of the roof terrace from the northern and southern edge of the building is sufficient to protect visual privacy, particularly in the context where the view of a person using the terrace will be directed to the expansive water views to the west.

7. Consistent with the requirements of cl 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 3 March 2022.

8. As required by cl 102(2) of the EPA Regulation 2021, the amended modification application is accompanied by a design verification statement dated 23 September 2022, which verifies that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development.

9. 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)).

10. 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 4.55(3) and 4.15(1) of the EPA Act.

11. The Court notes that:

1. The parties have reached an agreement in a conciliation conference conducted pursuant to s.34(3) of the Land and Environment Court Act1979 (NSW), as to a decision that the Court could have made in the proper exercise of its functions; and

2. The Council, as the relevant consent authority, has agreed to (pursuant to cl.113 of the Environment Planning and Assessment Regulation 2021) the Applicant amending Modification Application No. MA/22/0105 in accordance with the amended plans (which have been uploaded onto the NSW Planning Portal) filed with the Court on 14 September 2022 as described below.

Drawing No and Revision	Title	Prepared by	Date
vic lake architects
	DA03.11, Rev N	Roof Terrace Plan	12/9/2022
	DA03.12, Rev B	Roof / Site Plan	12/9/2022
	DA04.01 Rev M	Northern Elevation	12/9/2022
	DA04.02 Rev M	Southern Elevation	12/9/2022
	DA04.03 Rev M	Eastern Elevation	12/9/2022
	DA04.04 Rev M	Western Elevation	12/9/2022
	DA05.01 Rev L	Section A	12/9/2022
	DA05.02 Rev L	Section B	12/9/2022
	DA06.01 Rev L	GFA and DSP Calculation	13/9/2022
	DA06.03 Rev L	Proposed Shadows – Summer Solstice	13/9/2022
	DA06.04 Rev L	Proposed Shadows – Equinox	13/9/2022
	DA06.05 Rev L	Proposed Shadows – Winter Solstice – Sheet 1	13/9/2022
	DA06.10 Rev L	Height Plane Study	13/9/2022
	DA06.23 Rev L	Solar Access Analysis – 15 – 17 Tonkin St	12/9/2022
	DA06.29 Rev L	Proposed Shadows – Winter Solstice – Sheet 2	13/9/2022
	DA06.30 Rev L	Proposed Shadows – Winter Solstice – Sheet 3	13/9/2022
	DA06.36 Rev A	Sight Line Study – Roof Terrace – North	12/9/2022
	DA06.37 Rev A	Sight Line Study – Roof Terrace South	12/9/2022

12. The Court orders that:

1. The Appeal is upheld.

2. Modification Application No. MA/22/0105, to modify the development consent to Development Application No. DA18/1391 granted by the Respondent on 21 July 2020 relating to land at 11 and 13 Tonkin Street, Cronulla (Lots 1 to 6 S/P 1008 and Lots 1 to 10 S/P 294) is approved subject to the conditions at Annexure A.

3. As a consequence of Order (2), the development consent to Development Application No. DA18/1391 is now subject to the conditions in the form of Annexure B.

……………………….

Joanne Gray

Commissioner of the Court

156229.22 (Annexure A) (154378, pdf)

156229.22 (Annexure B) (314050, pdf)

**********

Decision last updated: 14 October 2022