Hamilton v Sutherland Shire Council

[2022] NSWLEC 1535

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hamilton v Sutherland Shire Council [2022] NSWLEC 1535

Hearing dates:

Conciliation conference on 27 September 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The revised cl 4.6 written request prepared by Steven Layman Consulting Pty Ltd for a variation to the lot width development standard under cl 4.1A of the Sutherland Shire Local Environmental Plan 2015 is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA19/0595 for the boundary adjustment between Lots 1150 & 1151 in DP1181245 and the Torrens Title Subdivision of Lot 1150 in DP1181245 to create a total of two (2) lots and associated works at No’s. 176A & 198 Ellesmere Road, Gymea Bay subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Act 1979, ss 1.3, 8.3, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Interpretation Act 1987, s 30A(2)

Land and Environment Court Act 1979, s 34

Sutherland Shire Local Environmental Plan 2015, cll 4.1A, 4.6, 6.1, 6.2

State Environmental Planning Policy (Coastal Management) 2018, cll 15, 16

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.12, 2.13, 4.6

State Environmental Planning Policy No 55—Remediation of Land (repealed), cl 7

Cases Cited:

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Colin Stewart Hamilton (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
R O’Gorman-Hughes (Respondent)

Solicitors:
Piper Alderman (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/344013

Judgment

1. The applicant, Colin Hamilton, has appealed against the Sutherland Shire Council’s determination to refuse consent to his subdivision application (no. DA19/0595 (DA)). That determination was not changed following a review under s 8.3 of the Environmental Planning and Assessment Act 1979 (EPA Act) and that review application is the subject of these proceedings.

2. The DA sought development consent for a boundary adjustment between Lots 1150 and 1151 in DP 1181245 and the Torrens Title subdivision of Lot 1150 in DP 1181245 to create a total of two lots and associated works (proposed development) at Nos 176A and 198 Ellesmere Road, Gymea Bay (site).

3. The site is zoned C3 Environmental Management (C3 zone) pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP). Development for the purposes of subdivision is permitted within this zone with development consent.

4. The hearing commenced onsite with the oral evidence of the objectors. After hearing from the objectors, the parties sought an adjournment of the hearing to allow the matter to be allocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated the parties’ request, and the conciliation took place before me on 27 September 2022.

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 cl 4.6 written request to vary the lot width development standard in cl 4.1A(2) of the SSLEP, upholding the appeal and granting deferred commencement development consent to the DA pursuant to ss 4.16 and 4.17 of the EPA Act subject to conditions.

6. 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 DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied in a joint submission accompanying the s34 agreement. I accept the parties’ submissions as follows:

Zoning & zone objectives

7. As stated, the site is located within the C3 zone pursuant to the SSLEP.

8. The objectives of the C3 zone are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•  To provide for a limited range of development that does not have an adverse effect on those values.

•  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.

•  To limit development in the vicinity of the waterfront so that the locality’s natural qualities can dominate.

•  To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.

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

9. These objectives are not pre-requisites to the granting of consent, however consideration of them is important. The parties agree that the DA in its amended format meets the zone objectives and I accept that to be the fact on the evidence before me and my view of the site.

Landowners’ consent

10. The applicant is the owner of the site. As such, the making of the DA complies with, and meets the requirements of, cl 49 of the Environmental Planning and Assessment Regulation 2000 (2000 Regulation).

11. The requisite landowners’ consents required under cl 49 of the 2000 Regulation have been received from the following registered proprietors of land affected by the proposed development:

1. Lot 1154, DP601960 (No. 172) Ellesmere Road, Gymea Bay (Mr R. Winch)

2. Lot 1152, DP601960 (No. 174) Ellesmere Road, Gymea Bay (Mr B. Williams)

3. Lot 1151, DP1181245 (No. 198) Ellesmere Road, Gymea Bay (Mr K. McCulloch & Mrs K. McCulloch)

State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) – Repealed and replaced with State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP)

12. SEPP 55 was repealed on 1 March 2022. Its operative provisions were transferred to Resilience & Hazards SEPP. Section 30A(2) of the Interpretation Act 1987 provides:

The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.

13. Clause 7 of SEPP 55 has been transferred to s 4.6 of the Resilience & Hazards SEPP. Section 4.6 is expressed in identical terms to cl 7 of SEPP 55.

14. Section 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated. Section 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

15. In the present case, there is no change of use of the site. Accordingly, consideration of a report specifying the findings of a preliminary investigation of the site is not required.

16. The parties agree with pursuant to s 4.6 of the Resilience & Hazards SEPP, that the site is suitable for the proposed development, and I am also satisfied on the evidence before me.

State Environmental Planning Policy (Coastal Management) 2018 (CM SEPP) – Repealed and replaced with Resilience & Hazards SEPP

17. The CM SEPP was repealed on 1 March 2022. Its operative provisions were transferred to the Resilience & Hazards SEPP. Section 30A(2) of the Interpretation Act 1987 provides:

The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.

18. The site is mapped as being within the Coastal Environment Area and Coastal Use Area under the CM SEPP and the Resilience & Hazards SEPP. The site is therefore in the coastal zone pursuant to s 5 of the Coastal Management Act 2016.

19. Clauses 15 and 16 of the CM SEPP were transferred to ss 2.12 & 2.13 of the Resilience & Hazards SEPP. Sections 2.12 & 2.13 are expressed in identical terms to those set out in cll 15 & 16 of the CM SEPP. These provisions prevent the granting of a development consent on land within the coastal zone unless the Court:

1. is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land; and

2. has taken into consideration the relevant provisions of any certified coastal management program (CMP) that applies to the land.

20. There will be no works to the existing sea wall along the foreshore or any works below the mean high-water mark to affect any foreshore vegetation that will cause increased risk of coastal hazards. Therefore, I am satisfied that the DA is not likely to cause an increased risk of coastal hazards on the site or other land. Furthermore, I note that no CMP applies to the site.

SSLEP

Minimum subdivision requirements in environmental protection zones - development standard (Clause 4.1A)

21. The proposed development is subject to a development standard in relation to minimum lot width. Part of the site (Proposed Lot 1 aka No. 198 Ellesmere Road, Gymea Bay) is affected by a lot width development standard of 18m pursuant to cl 4.1A(2) of the SSLEP. Proposed Lot 1 is an irregular shaped lot having its narrowest width measuring 14.2m and its widest width measure 48.5m. To justify the departure of compliance with the 18m development standard the applicant has submitted a written request pursuant to cl 4.6 of the SSLEP prepared by Steven Layman (written request). This written request is located at Tab 10 of the Class 1 Application.

22. Relevantly, the Council has raised no contention in relation to the cl 4.6 submission for the minimum lot width and in fact is supportive of the grant of consent to the proposed development in relation to proposed Lot 1 with a width less than 18m of the standard. However, as a matter of jurisdiction, I too must be satisfied that the variation is justified having regard to the terms of cl 4.6 of the SSLEP based on the terms of the written request and my observations at the site view. That said, after consideration I am so satisfied. I find that the applicant’s written request has adequately demonstrated the matters required to be demonstrated by subcl (3), and that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the zone in which the development is proposed (cl 4.6(4)(b)).

23. In regard to the objectives of the standard, I note that at p4 of the written request the applicant relies on the first tests in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 to argue compliance with the standard is unreasonable and unnecessary in the circumstances of this case because the objectives of the clause are achieved notwithstanding the breach. In addressing the first objective of the standard the written request states that the existing Lot 1 (198 Ellesmere Road) contains a dwelling house with adequate facilities outdoor recreation and service space, vehicular access to and from the lot, drainage and parking. Furthermore, that the area to be removed from the lot is physically “detached” from the dwelling by a high retaining wall and the adjustment of the boundary in fact improves drainage by providing better access to stormwater drainage for maintenance. Thereby the proposed development is consistent with the first objective of the standard.

24. In respect of objective 2 of the standard, it is submitted that the bulk and scale of the existing dwelling does not change with an approval of the proposed subdivision. As such, the natural qualities of Lot 1 are unaltered.

25. In respect of objective 3 of the standard, the written request emphasises the existing dwelling unaltered, and the area of the allotment meeting the minimum allotment size. Therefore, the proposed development can be described as ensuring “lot sizes and dimensions allow development to be sited to protect natural or cultural feature including heritage items, remnant vegetation, habitat and waterways”.

26. As to the second matter in cl 4.6(3)(b), the environmental grounds relied upon by the applicant identifies that these grounds must be sufficient to justify contravening the development standard and be sufficient. The focus being on the element of the breach: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. Whilst not a defined term it has been accepted that these environmental grounds must relate to the subject matter scope and purpose of the EPA Act, including the objects in 1.3 of the EPA Act.

27. Given the unique features of the proposed development – the character of the existing environment and its context, and particularly the retention of the existing building, it is submitted that environment sustainability principles are promoted by this development. The character of the existing environment and its context are maintained despite the breach at the building line. The retention of the existing building is said to be a better environmental planning outcome than demolition and relocation of the exiting dwelling. I accept the written request has demonstrated sufficient environmental planning grounds to support the variation.

28. Next the written request next deals at pp 11-13 with the zone objectives of the C3 zone and sets out why the proposed development is consistent with these objectives. Relying on the findings in the Flora and Fauna Impact Assessment report prepared by Abel Ecology, the written request submits that the proposed development will not have an unacceptable impact on any threatened flora and fauna on the site or immediate area. And, as the area of non-compliance is set aback from a front boundary on part of the site furthest from the waterfront, the proposal will result in an opportunity for built form that maintains the visual presentation at the street and provide for an appropriate area of open space and landscaping on the lot that will protect and manage the aesthetic values of the area. Furthermore, views toward the site are limited when taken from the public areas and adjoining sites. Ultimately, it is submitted that the proposed development will be compatible with adjoining residential lots and have no adverse impact on view sharing.

29. As proposed Lot 1 will be well removed from the foreshore area and heavily screened by vegetation that is to be retained, the written request submits that the proposed development will not have any adverse effects on the scenic qualities of the foreshore. On that basis, it is contended that the proposed development will protect and manage the sensitive, aesthetic and natural setting of the locality and values of the area.

30. In this instance, the proposed development allows for the continued use of the site as a single dwelling and the proposed subdivision and associated development stepping down the site will provide a comfortable fit compatible with the adjoining development. As such, it will not appear out of character when viewed from the locality as it does not involve any extensive site disturbance or excavation with no significant geological features to be affected. Thereby the zone objectives are achieved.

31. For the purposes of cl 4.6(5), the Secretary of the Department’s concurrence to the variation is assumed (Planning Circular PS 18-003 dated 21 February 2018) and cl 64(1) of the 2000 Regulation and I have considered the matters raised in subcl 4.6(5) and am satisfied.

Acid sulfate soils (Clause 6.1)

32. Clause 6.1 of the SSLEP requires development consent for the carrying out of works on land which is shown of the Acid Sulfate Soils Map. With respect to the proposed development the site is mapped as ‘Class 5 Land’. Clause 6.1(2) requires development consent for the carrying out of works on Class 5 land which are within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

33. In the present case, works for the proposed subdivision works will not be carried out within 500m of any adjacent Class 1, 2, 3 or 4 land. Therefore, I am satisfied that there will be no disturbance of acid sulfate soils resulting from the works to have any adverse impact on natural water bodies, wetlands, native vegetation, agriculture, fishing, aquaculture and urban and infrastructure activities.

Earthworks (Clause 6.2)

34. Clause 6.2 of the SSLEP requires various matters to be taken into consideration in determining whether to grant consent for earthworks.

35. At Tab 7 of the Class 1 Application is a report entitled iReport on Geotechnical Inspection by Geotechnique Pty Ltd dated 27 September 2021 which addresses the relevant matters. Based on that report, I am satisfied that the relevant matters to be considered under cl 6.2 of the SSLEP with respect to earthworks have been satisfactorily addressed.

Sutherland Shire Development Control Plan 2015 (SSDCP) – Neighbourhood notification

36. I understand that the DA was appropriately notified by the Council pursuant to the EPA Act and SSDCP. At the end of the notification period, the Council received submissions which have been duly considered and reported on. The parties agree that the relevant matters raised by the submitters have been considered and adequately addressed through the amended plans and conditions imposed on the development consent.

37. 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.

38. The Court notes:

1. Sutherland Shire Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the applicant amending development application no. DA19/0595 (amended DA).

2. The amended DA has been uploaded to the NSW planning portal on 31 August 2022.

3. The applicant has filed the amended DA (Notice of Motion) with the Court on 28 July 2022.

39. The Court orders:

1. The revised cl 4.6 written request prepared by Steven Layman Consulting Pty Ltd for a variation to the lot width development standard under cl 4.1A of the Sutherland Shire Local Environmental Plan 2015 is upheld.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA19/0595 for the boundary adjustment between Lots 1150 & 1151 in DP1181245 and the Torrens Title Subdivision of Lot 1150 in DP1181245 to create a total of two (2) lots and associated works at No’s. 176A & 198 Ellesmere Road, Gymea Bay subject to the conditions set out in Annexure ‘A’.

………………….

S Dixon

Senior Commissioner of the Court

Annexure A (235034, pdf)

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Decision last updated: 30 September 2022