Goodman v Sutherland Shire Council

[2025] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation:

Goodman v Sutherland Shire Council [2025] NSWLEC 1502

Hearing dates:

Conciliation Conference on 18 June 2025

Date of orders:

17 July 2025

Decision date:

17 July 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. DA24/0443 for alterations and additions to an existing dwelling including a remodelled external appearance, reconfigured internal layout, ancillary building and works below the foreshore building line at 349 Woolooware Road, Burraneer (Lot 1 DP 811473) is determined by the grant of consent, subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to an existing dwelling – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 38, Sch 7

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022, Sch 1

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2 ss 2.10, 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.7, 6.9, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

Ciaran Goodman (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/474198

Publication restriction:

Nil

JUDGMENT

Introduction

1. COMMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA24/0443 for alterations and additions to an existing dwelling including a remodelled external appearance, reconfigured internal layout, ancillary building and works below the foreshore building line at Lot 1 DP 811473 known as 349 Woolooware Road, Burraneer (the Site) by Sutherland Shire Council.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference, which I presided over, was held on 18 June 2025.

Outcome

3. At the conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the joint reports and the documents that are referred to in Condition 6 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). The plans and documents comprising the amended application were submitted to the Court on 18 June 2025 and are listed under Condition 6 of the conditions of consent at Annexure A. Changes made to the proposal to address the contentions include:

1. The applicant has agreed to a condition to ensure areas of the site cannot be used as a secondary dwelling

2. Additional information in the form of section AA to the plans, sun eye diagrams and a revised height blanket diagram was provided to assist in the assessment of the height of the proposal, together with an updated cl 4.6 submission

3. Updated photomontages, were provided together with an updated cl 4.6 submission in respect of cl 6.9 of the SSLEP, and

4. An amended landscape plan has been provided which provides improved plantings, an updated landscape calculation and the retention of the Norfolk Island Pine previously proposed to be removed.

6. Further, the previously proposed double guest garage was reduced to a single garage, an existing retaining wall was retained to protect the significant Norfolk Island Pine, which is to be retained and privacy treatments were included to protect neighbouring amenity.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its function (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

8. Consideration has been given to Ch 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) in respect of vegetation in non-rural areas and it is noted that the proposal seeks consent for tree removal and therefore the provisions of Ch 2 do not apply.

State Environmental Planning Policy (Sustainable Buildings) 2022

9. The proposal is BASIX affected development in accordance with Sch 7 of the EPA Reg and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply. An amended BASIX Certificate has been submitted prepared by Illawarra Basix Solutions (Cert No. A1757355_02 dated 12 June 2025) as required by s 27 of the EPA Reg.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the land which is in the ‘coastal use area’ and ‘coastal environment area’ to which ss 2.10 and 2.11 apply. On the basis of the assessment contained in the Statement of Environmental Effects (SEE) (Planning Ingenuity, 25 July 2024) I am satisfied that of the relevant matters outlined therein. In particular I accept the parties’ agreement that the visual amenity of the foreshore will be maintained as the development is not further forward toward the coastal foreshore than the existing dwelling.

11. Consideration has also been given as to whether the subject site is contaminated as required by s 4.6 of RH SEPP. The parties agree, based on aerial photography, that the site has a long history of residential use and that therefore contamination is considered unlikely. No further investigation in accordance with the RH SEPP is therefore required.

Sutherland Shire Local Environmental Plan 2015

12. The development is for the purposes of alterations and additions to an existing dwelling which is permissible in the C4 Environmental Living zone in which the site is located pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP).

13. The development has regard to the objectives of the C4 Environmental Living zone as required by cl 2.3.

14. The proposal seeks consent to the proposed demolition in accordance with cl 2.7.

15. Under cl 4.3 a maximum height of 8.5m applies to the subject land notwithstanding that the existing building has a maximum height of 10.3m. The proposed development has a maximum height of 11.145m and therefore does not comply with the development standard. A variation request in accordance with cl 4.6 of SSLEP has therefore been submitted seeking to vary the building height development standard. I am satisfied that consent should be granted notwithstanding the contravention of the building height development standard having regard to the circumstances of the case. In particular I am satisfied that:

1. The written request, dated 28 May 2025 prepared by Planning Ingenuity, lodged pursuant to cl 4.6 of the SSLEP adequately establishes sufficient environmental planning grounds that justify the breach in the building height development standard.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

16. The proposed development complies with the applicable floor space ratio development standard set out in cl 4.4 of SSLEP which provides for a maximum Floor Space Ratio (FSR) of 0.5:1 (0.37:1 proposed).

17. The site is mapped as having Class 5 Acid Sulfate Soils however no excavation is proposed beyond the existing developed areas as part of the proposed works. Accordingly, no further assessment is required in accordance with cl 6.1 of SSLEP and an acid sulfate soils management plan is not required.

18. I am satisfied that the proposed development complies with the relevant requirements of cl 6.2 in respect of earthworks having regard to the parties’ agreement, recommended conditions of consent and the assessment contained in the SEE prepared by Planning Ingenuity (25 July 2024).

19. I am further satisfied that the proposal complies with the requirements of cl 6.4 as it proposes to connect to the existing stormwater drainage system on site as outlined in the SEE prepared by Planning Ingenuity (25 July 2024).

20. The site is identified as environmentally sensitive land – riparian land and watercourses for the purpose of cl 6.7. On the basis of the assessment contained in the SEE prepared by Planning Ingenuity (25 July 2024), I am satisfied that the relevant matters contained therein have been considered and that, subject to recommended conditions of consent, the proposal is acceptable.

21. Clause 6.9 of SSLEP relates to Limited development on the foreshore area and limits development in the foreshore area. The proposed development does not comply with the development standard as it proposes a slight encroachment into the foreshore area. Accordingly, a variation request in accordance with cl 4.6 of SSLEP has been submitted seeking to vary the foreshore area development standard. I am satisfied that consent should be granted notwithstanding the contravention of the foreshore area development standard having regard to the circumstances of the case. In particular I am satisfied that:

1. The written request, dated 13 June 2025 prepared by Planning Ingenuity, lodged pursuant to cl 4.6 of the SSLEP adequately establishes sufficient environmental planning grounds that justify the breach in the foreshore area development standard.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary in the circumstances of the case given that the proposal achieves the objectives of the standard notwithstanding the non-compliance and that it will not result in any adverse impacts.

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the development standard.

22. A minimum 40% landscape area requirement applies to the site in accordance with cl 6.14. The existing landscape area on site will not be affected by the proposed development and does not currently comply with the SSLEP requirement. Clause 6.14 (4A and 4B) permits an existing non-compliance to continue and development consent to be granted if the consent authority is satisfied of the matters in 6.14(4A)(b). I am satisfied of these matters on the basis of the assessment in the SEE (Planning Ingenuity, 25 July 2024).

23. Based on the plans, the parties’ agreement and the assessment contained in the SEE (Planning Ingenuity, 25 July 2024), I am satisfied that the proposal complies with the relevant requirements of cl 6.16 ‘Urban design – general’ and cl 6.17 ‘Urban design – residential accommodation’ as the proposed alterations and additions are well integrated with the existing building, are compatible with the surrounding character and will provide a high level of residential amenity to the dwelling occupants. Further the impact of the proposal on neighbouring properties is minimal subject to recommended conditions of consent.

Other Matters

24. The development application is accompanied by owners’ consent in accordance with s 23 of the EPA Reg.

25. The Respondent notified the original development application between 28 August and 12 September 2024. One (1) submission was received in response to the notification. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submission.

Conclusion

26. 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)).

27. 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 development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

28. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. DA24/0443 for alterations and additions to an existing dwelling including a remodelled external appearance, reconfigured internal layout, ancillary building and works below the foreshore building line at 349 Woolooware Road, Burraneer (Lot 1 DP 811473) is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (559 KB, pdf)

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Decision last updated: 17 July 2025