Grant v Sutherland Shire Council

[2024] NSWLEC 1588

Land and Environment Court

New South Wales

Medium Neutral Citation:

Grant v Sutherland Shire Council [2024] NSWLEC 1588

Hearing dates:

Conciliation conference on 18 September 2024

Date of orders:

24 September 2024

Decision date:

24 September 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 24/0054 to amend Development Consent No. 21/1269 including the provision of rooftop terraces and changes to the internal layout is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – amending an approved development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

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

Sutherland Shire Local Environmental Plan 2015, cll 4.1B, 6.1, 6.14, 6.16, 6.17; Sch 1

Category:

Principal judgment

Parties:

Adam Grant (Applicant)
Sutherland Shire Council (Respondent)

Representation:

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

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

File Number(s):

2024/164837

Publication restriction:

No

Judgment

1. COMMISSIONER: 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 by Sutherland Shire Council (the Council) of Development Application No. 24/0054 to amend Development Consent (DA 21/1269) for the demolition of existing structures and construction of a dual occupancy development with 2 swimming pools (the approved development). The application seeks consent for 2 rooftop terraces, reconfiguration of internal layout, façade changes and ramp to basement level of the approved development. The site is at 6-8 Ischia Street, Cronulla.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 September 2024. I presided over the conciliation conference. 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. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

3. There are preconditions to the exercise of power to grant development consent for the proposal.

The application is amended

4. 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. The plans and documents comprising the amended application are listed under condition 6 of the conditions of consent at Annexure A.

Jurisdictional matters

5. The site is zoned C4 Environmental Living pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

6. The proposal is permissible with consent in the E4 zone, as an additional permissible use under Sch 1 of LEP 2015.

7. Clause 4.1B of LEP 2015 regulates minimum lot size for strata subdivision of dual occupancies in the C4 Zone and the requirement is 700 m². The site has an area of 1,191 m² and complies with this requirement (refer to Site Plan 01B).

8. The height of buildings development standard for the site is 8.5m and the proposal complies with the standard. The floor space ratio (FSR) development standard for the site is 0.5:1 and the proposal has a FSR of 0.494:1.

9. The site is identified as being potentially subject to Class 5 acid sulfate soils, pursuant to cl 6.1 of LEP 2015. However, the proposed development is not likely to lower the watertable below 1 metre Australian Height Datum on adjacent Class 1 land. As such, it is considered that proposal will not result in any adverse impacts in relation to acid sulfate soils.

10. Clause 6.14 requires a landscaped area of 40%. The proposal provides a landscaped area of 40.2%.

11. I accept the Council’s submission and I am satisfied that the proposal represents a high quality design, pursuant to cll 6.16 and 6.17 of LEP 2015, as the proposal integrates comfortably with the existing character of the locality.

12. The site has historically been used for residential purposes and no change of use is proposed. There are no reasons to consider that the land is contaminated, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

13. Condition 7 of the conditions of consent at Annexure A requires the applicant to surrender Development Consent No. 21/1269 so that this consent will approve the built form approved under the development consent and the amendments proposed.

Conclusion

14. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 17 September 2024 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.

Orders

15. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 24/0054 to amend Development Consent No. 21/1269 including the provision of rooftop terraces and changes to the internal layout is determined by the grant of consent, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (388002, pdf)

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Decision last updated: 24 September 2024