Join Constructions Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:

Join Constructions Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1551

Hearing dates:

Conciliation conference 23 August 2024

Date of orders:

10 September 2024

Decision date:

10 September 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0132 for changes to the internal and external building form, reduction in building envelope, and revised landscape works at 9 The Esplanade, Cronulla, is determined by way of approval.

(2)   Development Consent No DA22/0151 is modified in the terms in Annexure A.

(3)   Development Consent No DA22/0151 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – application directly made to Court - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55
Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

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

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.11, 2.12, 2.13

Cases Cited:

Kerstin Thompson Architects Pty Ltd trading as Kerstin Thompson Architects v Sutherland Shire Council [2022] NSWLEC 1432

Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103

Category:

Principal judgment

Parties:

Join Constructions Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/205301

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The modification application is to a Land and Environment Court development consent (Kerstin Thompson Architects Pty Ltd trading as Kerstin Thompson Architects v Sutherland Shire Council [2022] NSWLEC 1432) (Kerstin Architects). The modification application MA24/0132 was filed with the Court on 3 June 2024. The proposed modifications to the original consent DA22/0151 at 9 The Esplanade Cronulla Lot 1 DP 1292555 as filed to the Court are summarised as follows:

• Alterations to the internal and external built form.

• Reduction in the building envelope.

• Revised landscaping works.

• Deletion of deferred commencement conditions for consolidation of sites.

• Inclusion of swimming pool related conditions from DA23/0497 and surrender of the DA.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 23 August 2024.  I presided over the conciliation conference.

3. 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 determining the modification application and modifying the development consent.

4. The Court notes that Sutherland Shire Council, as the relevant consent authority, has agreed pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the Applicant amending the subject modification application (amended application) to rely upon the documentation listed as follows:

No.	Drawing No	Drawing Title	Prepared By	Date
Architectural Plans
1.	DA-100 (Revision B)	Basement 02 Floor Plan	Fergus Scott Architects	23.07.24
	DA101 (Revision B)	Basement 02 Mezzanine Floor Plan	Fergus Scott Architects	23.07.24
	DA102 (Revision B)	Basement 01 Floor Plan	Fergus Scott Architects	23.07.24
	DA103 (Revision B)	Ground Floor Plan	Fergus Scott Architects	23.07.24
	DA104 (Revision B)	First Floor Plan	Fergus Scott Architects	23.07.24
	DA-105 (Revision B)	Roof Terrace Plan	Fergus Scott Architects	23.07.24
	DA-106 (Revision B)	Site + Roof Plan	Fergus Scott Architects	23.07.24
	DA-200 (Revision B)	Elevations – Sheet 1	Fergus Scott Architects	23.07.24
	DA-201 (Revision B)	Elevations – Sheet 2	Fergus Scott Architects	23.07.24
	DA-202 (Revision B)	Elevations – Sheet 3	Fergus Scott Architects	23.07.24
	DA301 (Revision B)	Section B	Fergus Scott Architects	23.07.24
	DA-700 (Revision B)	External Finishes	Fergus Scott Architects	23.07.24
Landscape Plans
2.	LP01 S4.55 – D6519 (Revision C)	Cover Page	Dangar Barin Smith	08.08.24
	LP02 S4.55 – D6519 (Revision C)	Landscape Plan - Ground Floor	Dangar Barin Smith	08.08.24
	LP03 S4.55 – D6519 (Revision C)	Landscape Plan - First Floor	Dangar Barin Smith	08.08.24
	LP04 S4.55 – D6519 (Revision C)	Landscape Plan – Roof Terrace	Dangar Barin Smith	08.08.24
Supporting Documentation
No.	Document			Date
3.	BASIX Certificate No. 1146245S_03 prepared by Atelier Ten			26.07.24

5. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

7. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. This is set out below.

9. I am satisfied that owners consent accompanied the modification application.

10. The following consents are relevant to this application:

• DA20/1117 – Demolition of all existing structures, associated tree removal, construction of a three-storey dual occupancy with a roof top terrace, a swimming pool for each dwelling, two (2) basement levels, associated landscaping and civil works including the drainage works carried out by the applicant on behalf of Council upgrading the existing pipes system draining upstream stormwater from Mentone Avenue to The Esplanade, and lot consolidation.

• DA20/1117 was granted by the Land and Environment Court - Kerstin Thompson Architects Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1735.

• DA22/0151 - For the change of use from a dual occupancy to a single dwelling at 9-10 The Esplanade, Cronulla.

• This is the DA the modification application seeks to modify.

• DA23/0497 for the construction of a swimming pool and spa with associated landscaping works.

• The modification application seeks to include conditions in relation to this consent, including its surrender and various construction conditions.

11. I have considered the documentation within the amended application and the parties’ agreed detailed jurisdictional statement at [10] – [41]. I accept that the proposed modifications to the dwelling and inclusion of a pool will be substantially the same as the original development (s 4.55(2)(a) of the EPA Act) for the following reasons:

• On face value, the consent to be modified refers only to change of use. However, condition 3 states:

3. Relationship between this consent and Development Consent DA20/1117

This approval grants the construction of a single dwelling house on the subject land, superseding Development Consent DA20/1117 which authorised the demolition of existing structures, the construction of a dual occupancy, landscaping, drainage work and consolidation. In the event of any inconsistencies between the plans referred above and those approved by Development Application DA20/1117, the plans in this consent prevail.

The conditions of consent imposed upon Development Consent DA20/1117 must be complied with - to the extent they are consistent with this consent. In the event of any inconsistency between the conditions of Development Consent DA20/1117 and this consent, the conditions of this consent shall prevail. (emphasis added).

• The parties submit that Condition 3 granted consent for physical works when the development consent is properly construed.

• The parties rely on Preston CJ’s decision in Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [19]. In essence, that an understanding of a particular development is understood beyond the description and includes the accompanying plans.

• The parties also rely on Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 [43] to support the proposition that a development consent is to be construed with reference to documents that form part of the consent.

• In this instance, Condition 2 involved the carrying out of works with reference to DA20/1117 except where superseded by the plans of DA2022/0151.

• In the circumstances of this consent, I accept that parties’ submissions that despite the description of the consent referring to the development as a change of use, that Conditions 2 and 3 included consent for works / construction of a building.

• On this basis, I also accept that the generally minor building modification works and swimming pool works remain substantially the same development as originally approved.

12. With respect to s 4.55(2)(b), (c) and (d) of the EPA Act, the modification application was notified between 19 June 2024 to 5 July 2024. One objection was received. As the parties have reached agreement, the parties have considered the issues raised in relation to excavation, setbacks and height at par 40 of the jurisdictional statement. In summary, the parties advised the Court that the total amount of excavation has decreased, the side setbacks on ground, first and upper levels have increased, and the overall height has reduced by approximately 380mm.

13. There are no relevant approval bodies for concurrence (s 4.55(2)(c)).

14. With respect to s 4.55(3) of the EPA Act and the reasons for granting consent, in reviewing the parties’ jurisdictional statement and Kerstin Architects, the amended application does not offend the reasons for the grant of consent, noting that the judgment reflected the s 34 agreement of the parties.

15. Further, I accept that the parties have adequately considered s 4.15(1) of the EPA Act as set out in the agreed jurisdictional statement, Statement of Environmental Effects prepared by Planning Ingenuity dated 30 May 2024 and documentation accompanying the modification application (including the amended application). The modification application is primarily within the same building envelope and the excavation related works and swimming pool location are consistent with what was previously considered in the original development application and DA20/1117. These works were previously considered against ss 2.10, 2.11, 2.12 and 2.13 of State Environmental Planning Policy (Resilience and Hazards) 2021 and I accept that the minimal changes do not change the provisions being satisfied. With respect to the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate accompanies the amended application which addresses the requirements.

16. I accept the parties’ agreement that the modification application does not materially alter the matters for consideration under s 4.15 of the EPA Act.

17. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met, as evidenced in the documentation accompanying the Class 1 appeal, amended application, and supported by the jurisdictional statement.

Conclusion

18. 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.

19. I have considered the jurisdictional prerequisites 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.

20. 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.

Orders

21. The Court orders:

1. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0132 for changes to the internal and external building form, reduction in building envelope, and revised landscape works at 9 The Esplanade, Cronulla, is determined by way of approval.

2. Development Consent No DA22/0151 is modified in the terms in Annexure A.

3. Development Consent No DA22/0151 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

205301.24 Annexure A

205301.24 Annexure B

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Decision last updated: 10 September 2024