Hinkler Ave 1 Pty Limited v Sutherland Shire Council

Case •

[2024] NSWLEC 1174

•

12 April 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2024] NSWLEC 1174
Hearing dates: Conciliation conference 8 April 2024
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $60,000 within 28 days of the date of these orders.

(2) The Applicant’s written request, prepared by Sutherland and Associates Planning dated September 2023, made pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to vary the height development standard in cl 4.3 of the SSLEP, is upheld.

(3) The appeal is upheld.

(4) Development Application No DA21/1251, as amended, for the demolition of existing structures and construction of a mixed use development containing a health service facility of 4,684m2 and 209 residential units, of which 65 are affordable rental housing, with Torrens title and stratum subdivision at 6-20 Hinkler Avenue and 319-333 Taren Point Road, Caringbah, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development in R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Conveyancing Act 1919, s 88E

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Water Management Act 2000

Environmental Planning and Assessment Regulation 2000, cll 50, 55

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.10, Ch 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18, 19, 21, 147, Sch 7A, s 8, Sch 9, Pt 2, Div 1, Ch 4

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.100, 2.120, 2.122, Ch 2

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Sutherland Shire Local Environmental Plan 2015, cll 4.1, 4.1A, 4.3, 4.4, 4.6, 5.1, 5.1A, 6.2, 6.4, 6.16, 6.17, 6.18, 6.21

Texts Cited:

Sutherland Shire Development Control Plan 2015

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline, December 2008

Category:Principal judgment
Parties: Hinkler Ave 1 Pty Limited (Applicant)
Sutherland Shire Council (Respondent)
Representation:

Counsel:
I Hemmings SC (Applicant)
J Reid (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers (Respondent)
File Number(s): 2022/258252
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Sutherland Shire Council (the Respondent) of Development Application No DA21/1251 seeking consent for the demolition of existing structures and construction of a mixed-use development comprising health service facilities, residential accommodation (including affordable housing) and basement parking, with Torrens title and stratum subdivision (the DA) at 6-20 Hinkler Avenue and 319-333 Taren Point Road, Caringbah.

  2. The DA was lodged by the Applicant in these proceedings, being the registered owner of the site, on 13 December 2021. The DA was notified in February and November 2022 during which 15 public submissions were made.

  3. The Applicant amended the DA on 8 March 2023, after which parties engaged further in without prejudice discussions that resulted in further amended plans and other documents that were renotified by the Respondent, concluding on 9 February 2024, and during which four submissions were received.

  4. The matter was initially listed before me for hearing on 8-10 April 2024. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 8 April 2024. I presided over the conciliation conference.

  5. Prior to 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 appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 April 2024.

  6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

  7. 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.

  8. The site is located within an area identified by the relevant land use table in the Sutherland Shire Local Environmental Plan 2015 (SSLEP) as R4 High Density Residential, in which the proposed uses are permitted with consent, where consistent with the objectives of the zone, being:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

•  To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

•  To minimise the fragmentation of land that would prevent the achievement of high density residential development.

  1. The minimum subdivision lot size area applicable to the site is 550m2. The site comprises two lots of 3,552m2 and 5,820m2 which, individually and when consolidated, exceed the minimum lot size set out at cl 4.1(2) of the SSLEP.

  2. On the basis of the Draft Torrens Title Subdivision Plan prepared by John Charles Hughes dated 4 March 2024 (Subdivision Plan), I am satisfied that the proposed subdivision that results from development the subject of the development application comprises lots with a minimum width greater than 15m at the building line, and not less than 27m in depth, in accordance with cl 4.1A of the SSLEP. I also note that the provision does not apply where a building on land zoned R4 is proposed to be subdivided into stratum lots (subcl (3)(d)).

The height standard is exceeded

  1. As the site is located within the Caringbah Medical Precinct, cl 6.21 of the SSLEP applies to permit additional height and floor space if:

  1. In the case of height (subcl (4)):

(a) the building contains a health services facility, and

(b) the building provides a transitional scale of building height to Flide Street, Caringbah, and

(c) the building setbacks are sufficient for the deep soil planting of substantial landscaping, including large scale indigenous trees on Kingsway frontage at Caringbah.

  1. In the case of floor space (subcl (5)):

(a)  the building is on land identified as “Area 7” on the Floor Space Ratio Map, and

(b)  the building contains a health services facility, and

(c)  the building provides a transitional scale of building height to Flide Street, Caringbah, and

(d)  the building setbacks are sufficient for the deep soil planting of substantial landscaping, including large scale indigenous trees on Kingsway frontage at Caringbah.

  1. As the site is within Area 7, and the proposal is consistent with the requirements at [11(1)], the parties advise me that they are satisfied that the Amended Application proposes a development consistent with the requirements of cl 6.21(4) and so a total maximum height of 20m applies to development on the site.

  2. The proposed development is for a maximum height of 24.1m which exceeds the height standard applicable to the site. The Applicant relies upon a written request prepared by Sutherland & Associates Planning dated September 2023 in accordance with cl 4.6 of the SSLEP (the height request).

  3. The height request identifies the applicable height on the site, consistent with that summarised above, and explains that the development is a united building containing a health services facility. As a united building, a height standard of 20m applies to the whole of the development.

  4. The height exceedance is explained on Figure 19 in the following manner:

Building

Max height

Variation

A (southern)

• Roof: 22.7m

• Lift overrun: 24.2m

• Roof: 2.7m or 13.5%

• Lift overrun: 4.2m or 21%

B (middle)

• Roof: 24.1m

• Lift overrun: 24.4m

• Roof: 4.1m or 20.5%

• Lift overrun: 4.4m or 22%

C (northern)

• Roof: compliant

• Lift overrun: 20.8m

• Roof: nil

• Lift overrun: 0.8m or 4%

  1. The height request asserts that compliance with the height standard is unnecessary and unreasonable because the proposal is consistent with the objectives of the height standard, notwithstanding the non-compliance.

  2. The objectives of the height standard at cl 4.3 of the SSLEP, as are relevant to the site, are in the following terms:

(1)  The objectives of this clause are as follows—

(a)  to ensure that the scale of buildings—

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

(e)  to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,

(f)  to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.

(2)  The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

…

  1. The height request sets out the grounds on which it asserts the relevant objectives of the standard are achieved, summarised as follows:

  1. When the meaning of compatibility is understood, the proposal will be capable of existing in harmony with adjoining development because the additional height is setback from the perimeter of the site, presenting a six-storey street wall, and with sufficient deep soil setbacks to sit comfortably in the natural landscape.

  2. A high level of solar access is provided to all components of the development, with more than 70% of apartments receiving a minimum of 2 hours of sunlight, and only 5% of apartments receiving no solar access, which is fewer than that permitted by the Apartment Design Guide (ADG). Where overshadowing arises from the exceedance, figures 15, 16 and 17 are said to demonstrate shadows that are minimal and not meaningful to surrounding properties, or to the roadway where in the public domain.

  3. There are no identified views within the Caringbah Centre that are affected that would not otherwise be lost by development with a complying built form. In respect of privacy, the site adjoins only one other property to the north that is not compromised by loss of privacy. In respect of overshadowing, as stated at [18(2)] when the orientation of the site, bounding roads and duration of shadowing are considered. In respect of visual intrusion, the proposal does not intrude to a measurably greater extent than a complying development because of the recessive form of the uppermost levels that exceed.

  4. Likewise, the visual impact that is the subject of objective (d) is consistent with a building that presents a six-storey street wall height. Additional bulk above this is setback, and recessive in colour and material.

  5. The health services facility, identified as Building C, predominantly complies with the height standard such that it is compatible with the scale of residential buildings in the zone, being the intent of objective (e).

  1. The height request also asserts that strict compliance with the height standard has been virtually abandoned by the Respondent when development consent on six sites within the Caringbah Medical Precinct, and listed in the height request, are understood.

  2. Next the height request advances environmental planning grounds that it considers sufficient to justify the contravening of the height standard, summarised as follows:

  1. The exceedance assists in delivering affordable housing that would not be possible if strict compliance is required. Evidence for this is found in the bonus provisions that act as an incentive to provide affordable housing in the R4 zone, and in alternative siting and building envelopes described in the height request that demonstrate strict compliance would result in the loss of affordable housing units.

  2. The greatest exceedance is found in the lift overruns that are located centrally and facilitate access to rooftop communal open space.

  3. Distribution of height across the component buildings on the site results in a street wall presentation consistent with that envisaged by the controls and recent approvals in the area, and 3D massing diagrams demonstrate an appropriate contextual fit that is compatible with the exiting and desired future character.

  4. The exceedance enhances the amenity of the residents in the proposed development without imposing unreasonable adverse impacts on adjacent properties.

  5. The proposal is consistent with certain objects of the EPA Act.

  1. Finally, the height request states the proposal is in the public interest because it is consistent with the objectives for development in the R4 zone at [8] because the proposed development is for residential flat development in a high density residential zone, providing a mix of dwellings, including affordable and adaptable apartments. The development also proposes a health services facility within the Caringbah Medical Precinct, consistent with the Caringbah Medical Precinct Building Envelope depicted in the Sutherland Shire Development Control Plan 2015 (SSDCP) and the proposal demonstrates a high standard of urban design that integrates landscape into the development, and provides a community benefit in the form of the through-site link.

  2. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the SSLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the R4 High Density Residential Zone.

  3. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the SSLEP.

  4. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

  5. I am satisfied under cl 4.6(4) that the written request has adequately addressed 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 height development standard and the objectives for development within the R4 zone.

  6. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the SSLEP and I find no grounds on which the Court should not uphold the written request.

Remaining jurisdictional preconditions found in the Sutherland Shire Local Environmental Plan 2015

  1. While the relevant map at cl 4.4(2) of the SSLEP provides a maximum Floor Space Ratio (FSR) of 0.55:1 for the site, as the site is within Area 7 and consistent with the requirements at [11(2)], the parties advise me that they are satisfied that the Amended Application proposes a development consistent with the requirements of cl 6.21(4) and so the development benefits from an FSR bonus of 1.45:1.

  2. Additionally, as the development proposes an area of affordable housing that equates to 29% of the total gross floor area, an additional bonus of 0.29:1 is permitted by s 17(1)(a) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

  3. Accordingly, a total maximum FSR of 2.29:1 applies to the site. The Amended Application complies with this FSR.

  4. A portion of the site at 319-321 Taren Point Road is identified on the Land Reservation Acquisition Map at cl 5.1(2) of the SSLEP. The Subdivision Plan demonstrates that it is possible to dedicate for road widening that part which is identified in cl 5.1 for land acquisition. The architectural plans depict a basement setback from that boundary, and development over is set back further. The road widening intended for this part of Taren Point Road is evident to the north at 416-418 Kingsway and 315 Taren Point Road. Further road widening will occur in the frontage of 319 Taren Point Road, but likely not that area shown in the north-east corner of 321 Taren Point Road. On this basis, I am satisfied that the matters set out in cl 5.1A(2) and (3) have been addressed.

  5. Earthworks are proposed in the form of excavation for basement carparking and related uses. A Groundwater Impact Assessment prepared by Asset Geo Enviro dated 19 October 2021 concludes that permanent drainage be provided to the basement, and a Geotechnical Investigation of the same author dated 8 October 2021 recommends a contiguous or secant pile wall construction, vibration management controls, sub-grade preparation, filling procedures and groundwater level of 1m above the top of rock level be adopted for design of the basement structure. The agreed conditions of consent cite the Groundwater Impact Assessment and Geotechnical Investigation, and an Addendum to both reports, prepared by Asset Geo Enviro dated 21 November 2023 that verifies earlier assumptions are valid notwithstanding amendments in the Amended Application. On this basis, I am satisfied that those matters at cl 6.2(3) of the SSLEP that are required to be considered by the consent authority, or the Court on appeal, have been satisfactorily addressed.

  6. Having considered the Stormwater Concept Design prepared by SGC, the architectural plans prepared by DKO and the Landscape Plans prepared by Ground Ink Landscape Architects, I am satisfied that the area of water permeable surfaces on the site is measured at between 15-21% and onsite detention and filtration of stormwater that, together, minimises the impacts of urban stormwater on the area, consistent with cl 6.4 of the SSLEP.

  1. Clauses 6.16, 6.17 and 6.18 deal with urban design in general, and in terms of residential and non-residential development.

  2. Clause 6.16 requires certain matters at subcl (1) to be considered in deciding whether to grant development consent to the proposed development. An assessment of those matters is set out in the Statement of Environmental Effects, prepared by Sutherland & Associates Planning dated October 2021 (the SEE). The assessment states the proposal is consistent with the desired future character of the locality because it is consistent with the relevant planning provisions that determine such character, and will improve the public domain with predominantly compliant setbacks to streets in a landscaped setting. The proposal removes a number of vehicle crossings, improves pedestrian and traffic safety and undergrounds powerlines. Finally, crime risk is minimised by providing opportunities for natural surveillance to surrounding streets and internal areas of circulation where opportunities for concealment are minimised.

  3. The particular focus of cl 6.17 is on development for the purposes of residential accommodation and likewise requires consideration to be given to certain matters. The SEE states that:

  1. Diversity is provided in the mix of apartments designs and sizes, and in 50% of the apartments qualifying as affordable housing.

  2. All apartments are provided with private open space.

  3. Adverse impacts such as overshadowing, overlooking, views, privacy and visual intrusion are not imposed by the proposal because of design measures such as generous landscaping and appropriate separation distances.

  4. The streetscape is enhanced by perimeter landscaping and a through site link that is accessible to the public.

  1. The particular focus of cl 6.18 is on development other than development for the purposes of residential accommodation and places of worship in zones including the R4 zone in which the site is located. According to the SEE, the proposal is responsive to the provisions set out at subcl (2) in the following ways:

  1. The proposed health services facility generally adopts the location and footprint shown in the Caringbah Medical Precinct Building Envelope Plan, in Chapter 9 of the SSDCP, and so integrates well into the pattern of development anticipated in the area.

  2. The through-site link improves the streetscape by providing permeability along an otherwise long and unbroken urban block, on the southern side of the health services facility that is itself, a five-storey height that substantially complies with the applicable height standard.

  3. Residential amenity in the local area is protected from traffic-related impacts by locating the health services facility to the north of the site, avoiding the need for traffic generated by it to traverse the southern extent of the site in the same concentration.

State Environmental Planning Policy No 65 – Design quality of residential apartment development and State Environmental Planning Policy (Housing) 2021

  1. As the proposal is for residential apartment development, the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) would apply but for its repeal by Housing SEPP on 14 December 2023.

  2. Shortly before the conciliation conference, Sch 7A of the Housing SEPP was amended to insert a provision at Sch 7A, s 8(2A) that sets aside the kinds of applications to which the amending provisions did not apply, with the effect that Ch 4 of the Housing SEPP applies to a development application made, but not determined, on or before 14 December 2023.

  3. Section 147 of the Housing SEPP requires the consent authority, or the Court on appeal, to consider the quality of the design of the development, evaluated in accordance with the design principles set out in Sch 9 of the Housing SEPP, and the ADG.

  4. Relatedly, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application that relates to residential apartment development to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

  5. The statement must verify the designer designed, or directed the design of the development, and explain how the development addresses the design principles, and objectives in Parts 3 and 4 of the ADG (cl 50(1AB) of the EPA Regulation).

  6. I am satisfied that the statement provided by Mr Nicholas Byrne (Reg No 7806) adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG.

  7. The DA, as now proposed to be amended, proposes affordable housing to which Pt 2, Div 1 of the Housing SEPP, applicable at the time of lodgement of the DA, applies.

  8. As the development is permitted with consent, nominates 29% of gross floor area as affordable housing, and is within 800m of a railway station in the Greater Sydney region, the proposal complies with s 16(1) of the Housing SEPP.

  9. As stated at [28], the FSR provisions at s 17 of the Housing SEPP apply, and have been considered in the proposal.

  10. The proposed development is consistent with the relevant non-discretionary standards set out at s 18 of the Housing SEPP as follows:

  1. As stated at [9], the site exceeds the minimum site area at s 18(2)(a) of 450m2.

  2. The Applicant is not a social housing provider and so the standard at s 18(2)(b) does not apply.

  3. The proposed development includes a landscaped area that is expressed as 49% of the site area, which exceeds the standard of 30% required by s 18(2)(c) of the Housing SEPP.

  4. As stated at [32], the proposal includes deep soil areas with a minimum dimension of 3m that comprise 21% of the site which is in excess of the minimum of 15% of the site area required by s 18(2)(d)(i), and I note that as the site is bounded on three sides by streets, the site does not have a rear in a manner envisaged by s 18(2)(d)(ii).

  5. The development proposes 71.3% of units receive at least 2 hours of direct solar access between 9am and 3pm at mid-winter, consistent with the requirement at s 18(2)(e) for at least 70% of dwellings to receive at least 3 hours of direct solar access between 9am and 3pm at mid-winter.

  6. The proposal provides 1 car parking space for each 1 and 2 bedroom dwellings, and 2 car parking spaces for each 3 bedroom dwelling, which complies with, or exceeds the required parking rates at s 18(2)(g)(iii).

  7. The size of proposed units are consistent with or in excess of the minimum internal areas set out in the ADG, in compliance with s 18(2)(h).

  1. On the basis of the assessment of context and neighbourhood character made in Amended SEPP 65 Report, prepared by DKO Architecture, and the assessment contained in the SEE of existing and recent development in the vicinity of the site, the parties advise me that the Court can be satisfied that the DA as proposed to be amended is compatible with the desirable elements of the character of the local area or the desired future character, in accordance with s 19(3) of the Housing SEPP.

  2. The agreed conditions of consent, at Condition 54, require that a Restriction as to User be registered against the title of the property in accordance with s 88E of the Conveyancing Act 1919 to require the dwellings to be used for the purposes of affordable housing, and be managed by a registered community housing provider for a period of 15 years from the date of the issue of the Occupation Certificate, in accordance with s 21 of the Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. As the T4 Eastern suburbs and Illawarra rail line is in close proximity to the site, and is identified on the Road and Rail Noise Buffer Map, within the SSDCP, Ch 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) applies.

  2. The Development Application was accompanied by an Acoustic Report prepared by Acoustic Dynamics dated 15 October 2021 and the DA, as amended, is accompanied by an Addendum Acoustic Report prepared by Acoustic Dynamics dated 24 November 2023 containing recommendations to conform to the NSW Department of Planning's Development near Rail Corridors and Busy Roads - Interim Guideline, with respect to rail noise. Additionally, the agreed conditions of consent, at Conditions 33 and 34, require noise attenuation to be integrated into development, consistent with s 2.100 of the Infrastructure SEPP.

  3. Likewise, the Acoustic Reports cited above also deal with the impacts of noise and vibration on the development from road traffic along The Kingsway, to the north of the site, and provide recommendations that are the subject of conditions of consent, such that the levels at s 2.120(3) of the Infrastructure SEPP will be achieved.

  4. As the proposal is for development that includes greater than 75 dwellings and is within 90m of a classified road, The Kingsway, the proposal has been notified to Transport for NSW (TfNSW) in accordance with s 2.122 of the Infrastructure SEPP. TfNSW provided responses on 24 February 2022, and on 11 November 2022. The parties advise me that responsive to TfNSW advice, a dedicated right turn bay is to be constructed in The Kingsway to safely store vehicles turning right into Hinkler Avenue that is the subject of agreed conditions of consent at Conditions 2, 5 and 10.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an Aboricultural Assessment Report prepared by Dr Treegood dated October 2021. The parties have considered the report and advise me they are satisfied that the trees proposed to be removed are acceptable. Section 2.10 of the Biodiversity SEPP allows the issuing of a permit for the removal of vegetation where that clearing does not exceed the biodiversity offset scheme threshold.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

  1. The application is accompanied by a BASIX certificate (Cert No 1242746M_08, dated 25 November 2023) prepared by Senica Consultancy Group Pty Limited in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) and the EPA Regulation.

  2. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Water Management Act 2000

  1. While the proposed development has not been identified as integrated development under s 4.46 of the EPA Act, the Groundwater Impact Assessment cited at [31] notes the proposed development will result in aquifer interference of less than 3ML per year, for which WaterNSW may grant a water access licence.

  2. On 2 June 2022, Water NSW issued general terms of approval that are incorporated into the agreed conditions of consent.

Contamination

  1. Consistent with the terms of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazard SEPP) I have given consideration to the potential contamination of the site.

  2. The Respondent conducted a site inspection, and has reviewed its records, including historical aerial photos which show residential use in Hinkler Avenue since at least 1955 for the southern extent of the subject site and at least 1961 (if not earlier) for the northern extent. The subject site is not listed in Council’s contaminated land register.

  3. The Groundwater Impact Assessment cited at [31] states that laboratory testing of groundwater on the site recorded levels of contaminants below Groundwater Investigation levels.

  4. In conclusion, the site is suitable for the proposed development in accordance with requirements of the Resilience and Hazards SEPP.

Conclusion

  1. 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.

  2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

  3. The Court notes that:

  1. The Respondent provides reasons as to why it supports the parties entering into an agreement as set out in the s 34 agreement in the chapeau of the agreed conditions of consent at Annexure A.

  2. Sutherland Shire Council, as the relevant consent authority, has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No DA21/1251 in accordance with the documents set out in Annexure B.

Orders

  1. The Court orders that:

  1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $60,000 within 28 days of the date of these orders.

  2. The Applicant’s written request, prepared by Sutherland and Associates Planning dated September 2023, made pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to vary the height development standard in cl 4.3 of the SSLEP, is upheld.

  3. The appeal is upheld.

  4. Development Application No DA21/1251, as amended, for the demolition of existing structures and construction of a mixed use development containing a health service facility of 4,684m2 and 209 residential units, of which 65 are affordable rental housing, with Torrens title and stratum subdivision at 6-20 Hinkler Avenue and 319-333 Taren Point Road, Caringbah, is determined by the grant of consent subject to the conditions at Annexure A.

T Horton

Commissioner of the Court

Annexure A

Annexure B

**********   

Decision last updated: 12 April 2024

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