Geron Property No.7 Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1100

Land and Environment Court

New South Wales

Medium Neutral Citation:

Geron Property No.7 Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1100

Hearing dates:

Conciliation conference on 27 February 2024

Date of orders:

08 March 2024

Decision date:

08 March 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application number DA22/1100 is determined by the grant of consent for the demolition of existing structures and the construction of a residential flat building consisting of 22 x 3 bedroom units, 49 car spaces and 3 basement levels together with ancillary structures at 1 Wiak Road, Jannali, NSW 2226 (legally known as Lot 1 in DP 229025) subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 6, Pt 6.2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 28, 30, Sch 1

Sutherland Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 5.21, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited:

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

Category:

Principal judgment

Parties:

Geron Property No.7 Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Messenger Cole Pty Ltd (Respondent)

File Number(s):

2023/0041064

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application No. DA22/1100 for the demolition of existing structures and construction of a residential flat building with strata subdivision for Lot 1 DP 229025 known as 1 Wiak Road, Jannali (Site).

2. The proceedings were set down for a hearing on 26 to 28 February 2024. Following the joint conferencing of the experts, site viewing, further discussions between the parties and agreed conditions of consent, the parties agreed that the contested issues have been resolved. The parties, therefore, requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 27 February 2024. I have presided over the conciliation conference.

4. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending development application DA22/1100 in accordance with the documents listed at [32] (amended application). 

5. At the conciliation conference, the parties reached 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 for the amended application and granting development consent to the amended application subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

10. I am satisfied that owners consent accompanied the development application.

11. The development application was lodged to the Respondent on 22 November 2022. The Respondent notified the development application between 2 and 19 December 2022. 134 submissions were received. Further submissions were received in relation to the amended application. Oral submissions were heard at the on site viewing and from two directly adjoining residents. The concerns raised have been considered by the Respondent and Applicant in reaching agreement on the acceptability of the amended application.

Sutherland Local Environmental Plan 2015

12. The site is zoned R4 High Density Residential under the Sutherland Local Environmental Plan 2015 (SLEP). The proposed development for a residential flat building is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

13. Clause 2.7 requires consent for demolition, as proposed by the development application.

14. Clause 4.3 height of buildings applies to the site, setting a maximum height of 16m. The development application is 18.6m and is accompanied by a cl 4.6 written request prepared by Planning Ingenuity dated 30 January 2024 (written request) to contravene the height development standard. The parties agree and with consideration of the written request and joint expert report of the town planners, I accept that the written request satisfies the provisions of cl 4.6.

15. Clause 4.4 floor space ratio (FSR) applies to the site, setting a maximum FSR of 1.2:1. With consideration of the architectural plans, particularly dwg DA01 prepared by Innovate Architects dated 16 February 2024 (architectural plans), the parties agree and I accept that the proposed development does not exceed the maximum FSR.

16. Clause 5.21 flood planning applies to the site. The amended application is accompanied by a suite of stormwater plans indicated at Condition 1 of Annexure A, Flood Impact Assessment report prepared by WMA Water dated 18 October 2022 (Flood Report) and Stormwater Quality Management Plan dated October 2022 and Stormwater Pump Calculations both prepared by Mance Arraj Engineers (Stormwater Reports). The parties agree and I accept that the provisions of cl 5.21 have been satisfied.

17. Clause 6.2 earthworks applies. The amended application is accompanied by a Geotechnical Report prepared by Morrow Geotechnics Pty Ltd dated 6 July 2022 which adequately considers the provisions of cl 6.2.

18. Clause 6.4 stormwater management applies. The amended application is supported by the Flood Report and Stormwater Reports that are implemented through the stormwater plans and conditions of consent at Annexure A. The parties agree and I accept that the provisions have been satisfied.

19. Clause 6.14 landscaped areas applies to the proposed development and requires a minimum of 30% landscaping on site. I accept the agreement of the Aboricultural and Landscape experts in the joint expert report (landscape JER) that the amended application exceeds the minimum, at approximately 46.8%.

20. Clause 6.16 urban design general and cl 6.17 urban design residential accommodation apply to the proposed development. The parties have considered the provisions of cll 6.16 and 6.17, as evidenced in the joint expert reports of the town planners, resultant amended design of the proposed development and amended design verification statement from the registered architect.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the amended application includes tree removal. The parties agree and, with consideration of the evidence in the landscape JER and agreed conditions of consent at Annexure A (including transplanting of two Phoenix Palms), I accept that the provisions of Ch 2 are met.

22. Chapter 6, Part 6.2 of SEPP BC applies to the site. The parties agree and I accept that the amended application has considered and been designed to satisfy the provisions of Ch 6.2 in relation to water management, as evidenced through the Flood Report, Stormwater Reports and conditions of consent at Annexure A.

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

23. Due to the lodgement date of the development application, repealed State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development in accordance with Sch 7A, s 2(1)(a) and (2) of State Environmental Planning Policy (Housing) 2021.

24. SEPP 65 applies to the proposed development in accordance with cl 4.

25. Clauses 28 and 30(2) requires consideration of the design quality of the development in accordance with the design quality principles within Sch 1 and the Apartment Design Guide (ADG). Relevantly, s 29 of the EPA Reg 2021 requires that residential apartment development must be accompanied by a design statement prepared by a qualified designer in relation to the design quality principles within Sch 1 of SEPP 65 and the ADG.

26. The parties agree and I accept that the amended application meets the provisions of SEPP 65 on the basis of the SEPP 65 Design Quality Principles Statement completed by the nominated qualified designer Cameron Jones (registered architect No 7143) filed to the Court on 27 February 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended application is supported by a Statement of Environmental Effects prepared by Planning Ingenuity dated 1 November 2022 (SEE). The SEE states that the site has a long history of residential use and is therefore unlikely to be contaminated. The Respondent’s bundle of documents contains a planning report that does not identify any contamination of the site. Accordingly, the parties agree and I am satisfied that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

28. The parties agree and I am satisfied that the development application is accompanied by an amended BASIX Certificate (number 1332573M_04) that meets the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

29. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

30. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

31. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. Filed on 26 and 27 February 2024, the Court notes that the Respondent has approved, as the relevant consent authority, under s 38 of the EPA Reg 2021 to the Applicant amending Development Application No. DA22/1100 to rely upon the following amended plans and documents:

Plan Ref	Date	Description	Issue
DA01	22/2/24	Site Plan – Innovate Architects	E
DA02	22/2/24	Basement 3 Plans – Innovate Architects	B
DA03	22/2/24	Basement 2 Floor Plan – Innovate Architects	D
DA04	22/2/24	Basement 1 Floor Plan – Innovate Architects	D
DA05	22/2/24	Ground Floor – Innovate Architects	D
DA06	22/2/24	Level 1 - Innovate Architects	E
DA07	22/2/24	Level 2 - Innovate Architects	D
DA08	22/2/24	Level 3 - Innovate Architects	D
DA09	22/2/24	Level 4 - Innovate Architects	D
DA10	22/2/24	Elevations & Height Blanket Diagrams - Innovate Architects	D
DA11	22/2/24	Elevations & Façade Section - Innovate Architects	D
DA12	16/2/24	Sections A & B - Innovate Architects	C
L-01	26/2/24	Cover Sheet – Site Design +Studio	J
L-02	26/2/24	Landscape Plan Ground - Site Design +Studio	J
L-2.1	26/2/24	Landscape Ground Planting - Site Design +Studio	J
L-03	26/2/24	Tree Removal Plan - Site Design +Studio	J
L-04	26/2/24	Planting Details - Site Design +Studio	J
L-05	26/2/24	Notes & Specifications Site Design +Studio	J

• Amended BASIX Certificate No. 1332573M_04 and BASIX Stamped Plans;

• Amended SEPP 65 Design Verification Statement prepared by Cameron Jones filed 27 February 2024; and

• Consultant Advice Note prepared by Greenview Consulting dated 26 February 2024.

33. The Court notes that the Applicant agrees to pay $23,000 to the Respondent in satisfaction of the costs order made by the Court on 21 February 2024 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of judgment being handed down.

Orders:

34. The Court orders:

1. The appeal is upheld.

2. Development Application number DA22/1100 is determined by the grant of consent for the demolition of existing structures and the construction of a residential flat building consisting of 22 x 3 bedroom units, 49 car spaces and 3 basement levels together with ancillary structures at 1 Wiak Road, Jannali, NSW 2226 (legally known as Lot 1 in DP 229025) subject to the conditions contained at Annexure ‘A’.

……………………….

S Porter

Commissioner of the Court

Annexure A (1076056, pdf)

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Decision last updated: 08 March 2024