Green v Sutherland Shire Council

[2023] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:

Green v Sutherland Shire Council [2023] NSWLEC 1178

Hearing dates:

Conciliation conference on 5 April 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant’s written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the development standard for Floor Space Ratio in clause 4.4 of the Sutherland Shire Local Environmental Plan 2015, is upheld.

(2) The appeal is upheld.

(3) Development Application No 22/1040, for the demolition of existing dwelling and construction of a new dwelling, swimming pool and associated landscaping, at 52 Glaisher Parade, Cronulla, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2001, s 37
Land and Environment Court Act 1979, s 34AA
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), s 4.6
Sutherland Shire Local Environmental Plan 2015, cll 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.5, 6.7, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

Lital Green (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
I Lacy (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Auslex Law Group (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2022/383392

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Lital Green (the Applicant) against the deemed refusal of Development Application No. DA22/1040, by Sutherland Shire Council (the Respondent). The Development Application, lodged on 9 February 2022, seeks the demolition of existing dwelling and construction of a new dwelling and swimming pool and associated landscaping at 52 Glaisher Parade, Cronulla (Site).

2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 5 April 2023.

3. The parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions.

4. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The Respondent approved the Applicant’s application to amend the Development Application pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021.

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

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned C4 Environmental Living wherein the proposed development is permitted with development consent. Regard has been given to the objectives of the zone in determining the Development Application.

2. The proposed development does not comply with the permitted Floor Space Ratio of 0.5:1 pursuant to cl 4.4 of SSLEP 2015 – Floor Space Ratio (FSR). The parties agree that a calculation of FSR including all areas in the basement results in an exceedance of this development standard to 0.62:1. The Applicant has provided a written request pursuant to cl 4.6 of SSLEP 2015 and sets out the reasons for seeking a variation to the Development Standard including assessment against the relevant objectives in the SSLEP 2015, the environmental grounds for the written request and the public interest. The Respondent has considered the written request and agrees that:

1. Compliance is unreasonable or unnecessary in the circumstances of the case;

2. There are environmental planning grounds sufficient to justify the departure;

3. The objectives of the development standard are met; and

4. The objectives of the zone are met.

3. As a result of the above outcomes, and on review of the written request, I am satisfied that upholding the written request is a decision that the Court could have made.

4. The requirements of cl 5.10 – Heritage Conservation of the SSLEP 2015 have been considered. The Site adjoins a heritage item ( listed in Schedule 5, item no. 1002) being remnant native Cupaniopsis anacardiodes (Tuckeroo) and endangered Sutherland Shire littoral rainforest (extracted from NSW Heritage site). The Statement of Environmental Effects (SEE) has considered the impact on the heritage items at page 21 and in Annexure 1 of the SEE.

5. Aboriginal Heritage has also been assessed at page 21 of the SEE and an Aboriginal Heritage Information Management System search and procedure for the Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales is provided at Appendix 2 of the SEE. This recommends that works proceed with caution. An unexpected finds condition protecting aboriginal relics has been included in the agreed conditions of Development Consent.

6. The requirements of cl 6.1 of SSLEP 2015 in respect to Acid Sulfate Soils (ASS) has been considered. The Site is located within a Class 5 Acid Sulfate Soils area. The Geotechnical Investigation and Acid Sulfate Soils Assessment by Green Geotechnics dated 15 September 2022 at page 11 concludes that the proposed construction will not intercept any ASS and that works are not likely to lower the water table, thus satisfying this clause.

7. The requirements of cl 6.2 of SSLEP 2015 in respect to Earthworks, that require the consent authority to have considered the matters in subcl (3), have been met. Excavation is proposed to facilitate the basement level of the proposed dwelling. The proposed excavation is not considered to adversely impact, or cause risk to the Site and surrounds and will be managed in accordance with the civil plans, the stormwater plans and agreed conditions of Development Consent included in the Development Consent forming Annexure A.

8. The requirements of cl 6.4 of SSLEP 2015 in respect to Stormwater Management, that require the consent authority to consider various matters, have been met. Stormwater works are proposed which have been designed to maximise the use of the water permeable surfaces and will avoid any adverse impacts of stormwater runoff on the Site and surrounds. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

9. The requirements of cl 6.5 – Environmentally Sensitive Land – Terrestrial Biodiversity have been considered. The required assessment was undertaken in the SEE, at page 23, and the parties agree with this assessment.

10. The requirements of cl 6.7 – Environmentally Sensitive Land – riparian land and watercourses have been considered. The required assessment was undertaken in the SEE, at page 23, and the parties agree with this assessment.

11. The requirements of cl 6.14 – Landscaped Area have been considered. The Development Standard requires a minimum of 40% of the total site area to be landscaped and the proposal complies with this requirement.

12. The requirements of cll 6.16 and 6.17 – Urban Design General and Residential have been considered and the parties agree that the proposed outcomes in the amended Development Application satisfies these requirements.

13. The Development Application was placed on exhibition. The parties are satisfied that the matters raised by the single submission have been adequately considered, and where appropriate, addressed in the amended application the subject to this agreement and the conditions in the Development Consent forming Annexure A.

14. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

15. Consideration has been given to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The provisions of Ch 2 – Vegetation which applies in non-rural areas apply to the subject land. A Biodiversity Development Assessment report is not required and the Respondent is satisfied that the amended plans and conditions of consent satisfactorily address the retention of trees and the landscape outcomes for the Site. As a result of these deliberations and outcomes, I am satisfied that the Biodiversity and Conservation SEPP requirements have been met.

16. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021(Resilience and Hazards SEPP). The historical use of the Site for low density rural/residential purposes indicates that contamination is unlikely. The requirements under cl 4.6 of the Resilience and Hazards SEPP have been addressed, and the Site is suitable for its proposed use for residential purposes.

8. 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’ agreement.

9. 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

10. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant’s written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the development standard for Floor Space Ratio in clause 4.4 of the Sutherland Shire Local Environmental Plan 2015, is upheld.

2. The appeal is upheld.

3. Development Application No 22/1040, for the demolition of existing dwelling and construction of a new dwelling, swimming pool and associated landscaping, at 52 Glaisher Parade, Cronulla, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Stuart Harding

Acting Commissioner of the Court

383392.22 Annexure A (233200, pdf)

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Decision last updated: 19 April 2023