Ewos Investments Pty Ltd v Sutherland Shire Council

[2025] NSWLEC 1273

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ewos Investments Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1273

Hearing dates:

Conciliation conference on 17 March and 8 April 2025

Date of orders:

30 April 2025

Decision date:

30 April 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0271 for alterations to internal floor plates, amendments to private open space, minor amendments to building materials and finishes, and minor increase to excavation depth at 8 Ewos Parade, Cronulla, is determined by way of approval.

(2) Development consent DA23/0128 is modified in the terms in Annexure A.

(3) Development consent DA23/0128 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – application made directly to the Court – conciliation conference – residential flat building – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.7

Land and Environment Court Act 1979 s 34

Cases Cited:

Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410

Category:

Principal judgment

Parties:

Ewos Investments Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/454124

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of Modification Application MA24/0721, made directly to the Court pursuant to s 4.55 (8) of the Environmental Planning and Assessment Act1979 (EPA Act). The application seeks to modify development consent DA23/0128, which permitted the demolition of existing structures and construction of a five-storey residential flat building containing 15 apartments, basement parking and associated landscaping at 8 Ewos Parade, Cronulla, legally known Lot 1 in Strata Plan 11792.

2. The modification application seeks to amend internal floor plates, private open space, building materials and finishes, and excavation depth to a minor extent.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 March and 8 April 2025. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court approving the application to modify the consent in accordance with the modification application.

4. During the conciliation conference, the Council agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicant amending the modification application to adequately respond to the Council’s contentions. Broadly, these amendments included revisions to:

1. The bulky waste storage arrangement and electrical charging bay allocation in the basement;

2. Landscape fencing and private open space allocation;

3. Building materials, window arrangement and façade details;

4. Privacy treatments in various locations, and

5. The potential drainage easement location to connect the site stormwater to the Council’s infrastructure.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision 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 4.55(8) of the EPA Act to modify the development for which consent was originally granted by the Court.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

7. An updated BASIX Certificate has been provided, as required pursuant to s 100 (3) of the EPA Regulation. Further, a statement by a qualified designer has been provided with the Class 1 application as required by, and fulfilling the provisions of, s 102 of the EPA Regulation.

8. The requested modification results in a building that is of equivalent height and gross floor area, with minor adjustments to elevations and general arrangements that result in a lesser environmental impact. On this basis, pursuant to the requirements of s 4.55(2) of the EPA Act, I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

9. No further consultation is required pursuant to the requirements under EPA Act 4.55 (2)(b), and the application was notified as required under s 4.55 (2)(c) between 20 December 2023 and 27 January 2024. No submissions were received in this period.

10. Based on the parties’ submissions and the original judgment of the Court at Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410, I am satisfied that the reasons given by the consent authority for the grant of consent that is sought to be modified have been considered.

11. Based on the information contained in the Statement of Environmental Effects, the Class 1 application and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(3) and that there is no jurisdictional impediment to the granting of consent.

12. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority, has approved, under section 113 of the EPA Regulation, to the Applicant amending Modification Application MA24/0271 in accordance with the documents listed below:

No.	Drawing No / Rev	Drawing Title	Prepared By	Date
Architectural Plans
1.	1001/C	Basement Plan	IDA Design Group	10/04/2025
	1002/C	Ground Floor Plan	IDA Design Group	10/04/2025
	1003/C	Level 1 Plan	IDA Design Group	10/04/2025
	1004/C	Level 2 Plan	IDA Design Group	10/04/2025
	1005/C	Level 3 Plan	IDA Design Group	10/04/2025
	1006/C	Level 4 Plan	IDA Design Group	10/04/2025
	1007/C	Roof Plan	IDA Design Group	10/04/2025
	2001/C	Elevations Sheet 01	IDA Design Group	10/04/2025
	2002/C	Elevations Sheet 02	IDA Design Group	10/04/2025
	2005/C	Materials + Finishes	IDA Design Group	10/04/2025
	3001/C	Sections	IDA Design Group	10/04/2025
	3002/C	Sections	IDA Design Group	10/04/2025
	3003/C	Sections	IDA Design Group	10/04/2025
	3004/C	Sections	IDA Design Group	10/04/2025
	3005/C	Sections	IDA Design Group	10/04/2025
	3006/C	Sections	IDA Design Group	10/04/2025
	3007/C	Section Driveway	IDA Design Group	10/04/2025
	4011/C	Window and Door Schedule	IDA Design Group	10/04/2025
	4028/C	3D Visuals Pool	IDA Design Group	10/04/2025
Stormwater Plans
2.	S04-SW101/A	Notes & Legend	SGC Engineering	14/04/2025
	S04-SW201/A	Erosion & Sediment Control Plan & Details	SGC Engineering	14/04/2025
	S04-SW301/A	Stormwater Drainage Design Basement Plan	SGC Engineering	14/04/2025
	S04-SW302/A	Stormwater Drainage Design Ground Floor Plan Sheet 01 of 03	SGC Engineering	14/04/2025
	S04-SW303/A	Stormwater Drainage Design Ground Floor Plan Sheet 02 of 03	SGC Engineering	14/04/2025
	S04-SW304/A	Stormwater Drainage Design Ground Floor Plan Sheet 03 of 03 – Existing Adjacent Site	SGC Engineering	14/04/2025
	S04-SW401/A	Stormwater Drainage Design Details Sheet 01 of 02	SGC Engineering	14/04/2025
	S04-SW402/A	Stormwater Drainage Design Details Sheet 02 of 02	SGC Engineering	14/04/2025
	S04-SW501/A	Stormwater Drainage Design Music Catchment Plan & Details	SGC Engineering	14/04/2025
Supporting Documents
No.	Document			Date
3.	BASIX Certificate No. 1362038M_05			22/04/2025
4.	Letter of Support (18-20 Roker Street)			03/06/2024

14. The Court orders:

1. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0271 for alterations to floor plates internally, amendments to private open space, minor amendments to building materials and finishes, and minor increase to excavation depth at 8 Ewos Parade, Cronulla, is determined by way of approval.

2. Development Consent No. DA23/0128 is modified in the terms in Annexure A.

3. Development Consent No. DA23/0128 as modified by the Court is Annexure B.

E Washington

Commissioner of the Court

Annexure A (202666, pdf)

Annexure B (353655, pdf)

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Decision last updated: 30 April 2025