JS Boers Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1493

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

JS Boers Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1493

Hearing dates:

Conciliation conference on 2 August 2024

Date of orders:

15 August 2024

Decision date:

15 August 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application 23/0430 for the demolition of the existing dwelling and construction of a detached dual occupancy with two swimming pools and strata subdivision of land identified as Lot 1 in Deposited Plan 529743, known as 11 Lugano Avenue, Burraneer NSW 2230 is determined by the grant of consent, and subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16 and 8.7

Land and Environment Court Act 1979, ss 34

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Local Environmental Plan 2015, cll 6.4, 4.3, 4.4, Sch 1

Category:

Principal judgment

Parties:

JS Boers Pty Ltd (ACN 658 315 229) ATF Boers Family Trust (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
B Gallifuoco (Applicant)
K Danysz (Solicitor) (Respondent)

Solicitors:
Bick & Steele Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/38193

Publication restriction:

Nil

Judgment

1. COMMISSIONER: 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 No. 23/0430 for the demolition of the existing dwelling and construction of a detached dual occupancy with two swimming pools and strata subdivision of land identified as Lot 1 in Deposited Plan 529743 (the proposal), at 11 Lugano Avenue, Burraneer NSW 2230 (the Site), by Sutherland Shire Council (the Council).

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

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. 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. The plans and documents comprising the amended application are listed under Condition 6 of the Conditions of Consent at Annexure A.

Jurisdictional matters

5. The site is zoned C4 Environmental Living pursuant to Sutherland Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

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

6. The proposal is permissible under Sch 1, cl 28(2) Additional Permitted Uses of LEP 2015.

7. I accept the agreement of the parties that the proposal achieves compliant landscaped area and suitable stormwater design, pursuant to cl 6.4 of LEP 2015.

8. The proposal complies with the height of buildings and floor space ratio development standards for the site, pursuant to cll 4.3 and 4.4 of LEP 2015.

Conclusion

9. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 31 July 2024 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.

Orders

10. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 23/0430 for the demolition of the existing dwelling and construction of a detached dual occupancy with two swimming pools and strata subdivision of land identified as Lot 1 in Deposited Plan 529743, known as 11 Lugano Avenue, Burraneer NSW 2230 is determined by the grant of consent, and subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

38193.24 Annexure A

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Amendments

19 August 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, a correction is made to Order (2) to correct its wording in accordance with the parties' agreement.

Decision last updated: 19 August 2024