Ewos Investments Pty Ltd v Sutherland Shire Council
[2024] NSWLEC 1410
•18 July 2024
Land and Environment Court
New South Wales
Medium Neutral Citation: Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410 Hearing dates: Conciliation conference 12 July 2024 Date of orders: 18 July 2024 Decision date: 18 July 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that:
(1) The appeal is upheld.
(2) As a result of all amendments made, the applicant is to pay the respondent’s costs thrown away (inclusive of those payable under Order 4 of the Short Minutes handed down 3 May 2024) in the agreed amount of $20,000, to be paid within 28 days of the date of these orders - in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.
(3) Development consent is granted to Development Application DA23/0128 for demolition of the existing improvements and construction of a 5 storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla, subject to the conditions of consent annexed hereto and marked “Annexure A”.
Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), s 4.6
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002
State Environmental Planning Policy (Housing) 2021, s 147
Sutherland Shire Local Environmental Plan 2015, cl 6.4
Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183
Category: Principal judgment Parties: Ewos Investments Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel:
Solicitors:
M Sonter (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2023/148671 Publication restriction: Nil
Judgment
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COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA23/0128 (DA) by Sutherland Shire Council (Council).
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The DA seeks consent for demolition of the existing improvements and construction of a five storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla (site).
Conciliation and agreement between the parties
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The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 12 July 2024. Prior to the conference, the parties had come to an 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 consent to the DA, as amended in the course of conciliation, in accordance with agreed conditions.
Pre-requisites to the exercise of the function to grant development consent
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Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
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The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional statement, initially received by the Court on 11 July 2024 and further amended on 15 July 2024.
Sutherland ShireLocal Environmental Plan 2015
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The site is zoned R4 High Density Residential under the applicable Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development is permissible with consent. I have had regard to the zone objectives and note that the parties believe the proposal, as amended, is consistent with these objectives.
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I note and accept the advice of the parties that the proposal does not breach any development standards under SSLEP.
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Clause 6.4, concerned with stormwater management, requires findings of satisfaction in regard to certain matters. In regard to this, the parties referred me to material at Tab 4 of the applicant’s Section 34 Agreement Bundle which was filed with the Court on 4 July 2024. This material, prepared by S & G consulting engineers, directly addresses at pg 6 the particulars of cl 6.2(3). The parties advise me they agree with the findings of this work. In turn I also find that the development satisfies the requirements of cl 6.2(3).
State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)
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Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The applicant provided evidence that the site has been used for residential purposes for in excess of 45 years without any suggestion of particular uses at risk of bringing about contamination. I accept the advice of the parties that, in light of the above, the consent authority can be satisfied that the site is not contaminated and the requirements of s 4.6 have been met.
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 and State Environmental Planning Policy (Housing) 2021
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In their jurisdictional note, the parties advise that both State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) and State Environmental Planning Policy (Housing) 2021 (SEPP Housing), each have some relevance to the assessment of the DA. However, the parties advise that it is s 147 of the Housing SEPP which attention should be directed in the consideration of jurisdiction and, even so, the matters there listed are matters for consideration, rather than matters requiring jurisdictional findings. Here, I note that the parties advise that the proper procedural requirements and evaluative considerations of both the Housing SEPP and SEPP 65 have been undertaken in coming to their agreed decision.
Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979
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The parties have advised me of objecting submissions in relation to the proposal (indeed I heard from two objectors prior to the commencement of the conciliation conference). The parties explained to me how consideration has been given to them in coming to the final agreed amended plans.
Conclusion
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With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.
Notations
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With respect to the amendments of the DA, the Court notes that:
Sutherland Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application No DA 23/0128 in accordance with the amended plans and documents listed below:
| No. | Drawing No / Rev | Drawing Title | Prepared By | Date |
| Architectural Plans | ||||
| 1. | 0006/F | Demolition Plan | IDA Design Group | 05/06/2024 |
| 0007/F | Construction Management Plan | IDA Design Group | 05/06/2024 | |
| 0011/F | Site Plan | IDA Design Group | 05/06/2024 | |
| 0013/F | Site Plan - Fire Truck | IDA Design Group | 05/06/2024 | |
| 1001/F | Basement Plan | IDA Design Group | 05/06/2024 | |
| 1002/F | Ground Floor Plan | IDA Design Group | 05/06/2024 | |
| 1003/F | Level 1 Plan | IDA Design Group | 05/06/2024 | |
| 1004/F | Level 2 Plan | IDA Design Group | 05/06/2024 | |
| 1005/F | Level 3 Plan | IDA Design Group | 05/06/2024 | |
| 1006/F | Level 4 Plan | IDA Design Group | 05/06/2024 | |
| 1007/F | Roof Plan | IDA Design Group | 05/06/2024 | |
| 2001/F | Elevations Sheet 01 | IDA Design Group | 05/06/2024 | |
| 2002/F | Elevations Sheet 02 | IDA Design Group | 05/06/2024 | |
| 3001/F | Sections | IDA Design Group | 05/06/2024 | |
| 3002/F | Sections | IDA Design Group | 05/06/2024 | |
| 3003/F | Sections | IDA Design Group | 05/06/2024 | |
| 3004/F | Sections | IDA Design Group | 05/06/2024 | |
| 3005/F | Sections | IDA Design Group | 05/06/2024 | |
| 3006/F | Sections | IDA Design Group | 05/06/2024 | |
| 4009/F | Material & Finishes Schedule | IDA Design Group | 05/06/2024 | |
| 4010/F | 3D Height plane 16m | IDA Design Group | 05/06/2024 | |
| 4011/F | Window and Door Schedule | IDA Design Group | 05/06/2024 | |
| Stormwater Plans | ||||
| 23. | SW01/J | Cover sheet & Specifications | GEBA Consulting | 05/06/2024 |
| SW02/J | Erosion & Sediment Control Plan | GEBA Consulting | 05/06/2024 | |
| SW03/J | Basement Stormwater Plan | GEBA Consulting | 05/06/2024 | |
| SW04/J | Ground Floor Stormwater Plan | GEBA Consulting | 05/06/2024 | |
| SW05/J | Roof Stormwater Plan | GEBA Consulting | 05/06/2024 | |
| SW06/J | OSD Calculation Sheet | GEBA Consulting | 05/06/2024 | |
| SW07/J | Detail Sheet 1 | GEBA Consulting | 05/06/2024 | |
| SW08/J | Detail Sheet 2 | GEBA Consulting | 05/06/2024 | |
| Stormwater Drainage Easement Plans | ||||
| 31. | SW201/C | Stormwater Easement Design - General Arrangement Plan | SGC Engineering | 29/05/2024 |
| SW301/C | Stormwater Easement Design - Catchment Plan | SGC Engineering | 29/05/2024 | |
| SW302/C | Stormwater Easement Design - HGL Analysis | SGC Engineering | 29/05/2024 | |
| SW401/C | Stormwater Easement Design - Details – Sheet 01 | SGC Engineering | 29/05/2024 | |
| Supporting Documents | ||||
| No. | Document | Date | ||
| 35. | Stormwater Assessment Letter prepared by SGC Engineering | 30/06/2024 | ||
| 36. | Supplementary Traffic Swept Paths prepared by Stanbury Traffic | 18/06/2024 | ||
| 37. | Letter of Support (14 Roker Street) | 03/06/2024 | ||
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The amended development application was filed with the Court on 4 July 2024.
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That the respondent is now satisfied that the contentions raised in the proceedings have been addressed by the amended plans and documents in the Amended Application.
Orders
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The Court orders that:
The appeal is upheld.
As a result of all amendments made, the applicant is to pay the respondent’s costs thrown away (inclusive of those payable under Order 4 of the Short Minutes handed down 3 May 2024) in the agreed amount of $20,000, to be paid within 28 days of the date of these orders - in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.
Development consent is granted to Development Application DA23/0128 for demolition of the existing improvements and construction of a 5 storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla, subject to the conditions of consent annexed hereto and marked “Annexure A”.
P Walsh
Commissioner of the Court
Annexure A
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Decision last updated: 18 July 2024
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