Green v Sutherland Shire Council

[2025] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation:

Green v Sutherland Shire Council [2025] NSWLEC 1376

Hearing dates:

Conciliation Conference on 5 May 2025

Date of orders:

27 May 2025

Decision date:

27 May 2025

Jurisdiction:

Class 1

Before:

Miller AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application DA24/0158, as amended, for alterations and additions to an existing building and change of use to a secondary dwelling at Lot 5 in DP 16383 known as 11 Central Avenue, Como 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 building – change of use to secondary 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, Ch 6, Pt 6.2, ss 6.6, 6.7, 6.8, 6.9, 6.10

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

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

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4., 5.4, 6.1, 6.2, 6.4, 6.5, 6.7, 6.8, 6.9, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

Wayne Green (First Applicant)
Deborah Wolfe (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

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

File Number(s):

2024/434802

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 refusal of Development Application DA24/0158, for alterations and additions to an existing building and change of use to a secondary dwelling at Lot 5 in DP 16383 known as 11 Central Avenue, Como (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 5 May 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 5 May 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:

• The additional of privacy screens and gate to the balcony deck

• The replacement of the proposed window with an aluminium sliding door to the living / dining of the secondary dwelling

• Inclusion of BASIX requirements and the provision of an updated BASIX certificate

• The location of the bin area for the secondary dwelling behind the approved walling to the Central Avenue pedestrian access

• The inclusion of notations for handrails / balustrading

• The provision of additional dimensions between the balcony deck and the existing tree

• The provision of revised site calculations, and

• Reinstatement of the existing carport with safety balustrades annotated to the carport as per the previous Council approval.

Jurisdictional matters

6. 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 functions (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 (Resilience and Hazards) 2021

7. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The parties agree that the site has a long history of residential use (since 1955) and therefore contamination is considered unlikely. No further investigation in accordance with the RH SEPP is therefore required.

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. The proposal does not include any tree removal however conditions of consent have been recommended to protect trees on site and in the vicinity.

9. The site is located within the Georges River Catchment in accordance with the BC SEPP. Chapter 6 of the BC SEPP requires consideration of the impacts of development on land located within the Georges River Catchment, which is a ‘regulated catchment’. Part 6.2 precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to: water quality and quantity, aquatic ecology, flooding, recreation and public access, and total catchment management.

10. On the basis that the proposal is for the conversion of an existing studio into a secondary dwelling without any changes to the building envelope (with the exception of the additional of a new suspended balcony) and due to the fact that the proposal will connect to the existing stormwater infrastructure, I am satisfied that the proposal will ensure that the effect of the development on the quality of water entering a natural waterbody will be neutral or beneficial and the impact on water flow in a natural waterbody will be minimised (s 6.6(2)). Further I am satisfied that the proposal will not have any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; will not have a direct, indirect or cumulative adverse impact on aquatic reserves; will not impact land abutting a natural waterbody or the sedimentation of a natural waterbody; and does not affect any wetlands (s 6.7). The proposal is also very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s 6.8); does not affect public access to and from natural waterbodies (s 6.9); and is not likely to have an adverse environmental impact on any adjacent local government area (s 6.10).

State Environmental Planning Policy (Sustainable Buildings) 2022

11. 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 Mr Wayne Green (Cert No. 1792837S dated 24 April 2025) as required by s 27 of the EPA Reg.

Sutherland Shire Local Environmental Plan 2015

12. The development is for the purposes of alterations and additions to an existing building (including new balcony) and change of use from a studio to a secondary dwelling, which is permissible in the C3 Environmental Management 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 C3 Environmental Management zone as required by cl 2.3 of SSLEP including notably “to protect, manage and restore areas with specialist ecological, scientific, cultural or aesthetic values”, “to provide for a limited range of development that does not have an adverse effect on those values” and “to allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality”.

14. The proposal does not alter the existing height of buildings on site in accordance with cl 4.3 of SSLEP.

15. The proposed development complies with the 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 (0.25:1 proposed).

16. The proposal complies with cl 5.4(9) of SSLEP which provides for a maximum floor area of 60m² for secondary dwellings. The proposed secondary dwelling has a floor area of 53.97m².

17. The site is mapped as having Class 5 Acid Sulfate Soils but no excavation is proposed as part of the works. Accordingly, no further assessment is required in accordance with cl 6.1 of SSLEP.

18. The proposal does not include any earthworks, being contained to the existing building footprint therefore I am satisfied that cl 6.2 of SSLEP in respect of earthworks does not apply.

19. The proposal does not include any increase in hard surfaces on site or changes to the existing stormwater arrangements therefore no assessment in accordance with cl 6.4 of SSLEP is required.

20. The proposed development is wholly contained within the existing building footprint (with the exception of the new balcony) and therefore will not affect terrestrial biodiversity (cl 6.5), riparian land and watercourses (cl 6.7), environmentally sensitive land (cl 6.8) and the foreshore area (cl 6.9).

21. A minimum 40% landscape area requirement applies to the site in accordance with cl 6.14 of SSLEP. The existing landscape area on site will not be affected by the proposed development and complies with the SSLEP requirement (67%).

22. Based on the plan and the parties’ agreement, 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 new secondary dwelling is wholly contained within the existing building footprint, is well integrated with the surrounding character and will provide a high level of residential amenity to its occupants. Further the impact of the proposal on neighbouring properties is minimal.

Other Matters

23. The development application is made by the owners of the site in accordance with s 23 of the EPA Reg.

24. The Respondent notified the original development application between 17 April and 2 May 2024. One (1) submission was received in response to the notification and a further submission was received after the notification period. In reaching agreement, the parties have advised that consideration has been given to the concerns raised in the submissions.

Conclusion

25. 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)).

26. 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

27. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA24/0158, as amended, for alterations and additions to an existing building and change of use to a secondary dwelling at Lot 5 in DP 16383 known as 11 Central Avenue, Como is determined by the grant of consent, subject to the conditions contained in Annexure A.

H Miller

Acting Commissioner of the Court

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434802.24 Annexure A

Decision last updated: 27 May 2025