Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council (No 2)

[2022] NSWLEC 1002

Land and Environment Court

New South Wales

Medium Neutral Citation:

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council (No 2) [2022] NSWLEC 1002

Hearing dates:

22 and 23 July 2021

Date of orders:

6 January 2022

Decision date:

06 January 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Consent No. DA18/1391 is modified in the terms in Annexure A.

(3) Development Consent No. DA18/1391 as modified by the Court is Annexure B.

(4) Exhibits B, D, E, F, G, H and J to be returned to the parties.

Catchwords:

DEVELOPMENT APPEAL – residential flat building - modification application – multiple modifications – whether substantially the same – view impacts from the public domain – solar impacts on adjoining neighbouring property – reasons for the original consent – relevant merit assessment – orders

Cases Cited:

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733

Texts Cited:

NSW Department of Planning, Apartment Design Guide, (July 2015)

Category:

Principal judgment

Parties:

Duke Developments Australia 4 Pty Ltd ACN 627238386 (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2020/358895

Publication restriction:

No

Judgment

1. COMMISSIONER: On 30 November 2021 I handed down my reasons for judgment in the Class 1 Development Appeal (Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733) to uphold the appeal subject to conditions.

2. I directed the Parties to undertake work to prepare amended plans and to finalise conditions of consent to enable final orders where the Court will not approve the expanding and embellishing the roof top terrace associated with apartment 601 and where the Court will approve the following modifications:

1. consolidation and changes to unit layouts on levels 1 and 2 reducing the total number of units to 11 three bedroom units,

2. reconfigure ground level balcony spaces,

3. delete condition requiring levels 4, 5 and 6 (including roof) to be setback from the rear balcony and modification of deferred commencement conditions of consent (the Proposed Modified Development).

3. The Applicant filed further amended plans on 8 December 2021.

4. The Respondent filed Conditions of Consent on 22 December 2021.

5. I have reviewed the Further Amended Plans filed by the Applicant on 8 December 2021 and the Proposed/Draft Conditions of Consent filed by the Respondent on 22 December 2021. I drew to the parties’ attention the error in the table in conditions 3 which includes the following:

DA03.10 Rev J Sixth Floor Vic Lake Architects 17.05.21

6. The parties provided their written confirmation that the plan should read as follows in both Annexure A and Annexure B and have consented to the Court to make this correction:

DA03.10 Rev K Sixth Floor Vic Lake Architects 02.12.21

7. I am satisfied that the plans and conditions accord with my judgment and I now make the following orders.

8. The Court orders that:

1. The appeal is upheld.

2. The Development Consent No. DA18/1391 is modified in the terms in Annexure A.

3. Development Consent No. DA18/1391 as modified by the Court is Annexure B.

4. Exhibits B, D, E, F, G, H and J to be returned to the parties.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (177099, pdf)

Annexure B (365024, pdf)

Plans (13586503, pdf)

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Decision last updated: 06 January 2022