Karavias v Sutherland Shire Council

[2022] NSWLEC 1185

Land and Environment Court

New South Wales

Medium Neutral Citation:

Karavias v Sutherland Shire Council [2022] NSWLEC 1185

Hearing dates:

Conciliation conference on 22 February 2022

Date of orders:

08 April 2022

Decision date:

08 April 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Class 1 application is upheld;

(2) The revised cl 4.6 written request prepared by Logan Planning dated 8 March 2022 for a variation to the height of building development standard under cl 4.3 of the Sutherland Local Environmental Plan 2015 is upheld;

(3) Development consent is granted to development application no. DA 2010206 for the erection of a dwelling house at Lot 131, DP 9230 (No.103) Holt Road, Taren Point subject to the conditions set out in Annexure ‘A'.

Catchwords:

DEVELOPMENT APPEAL – residential development - conciliation conference – agreement between the parties - orders

Legislation Cited:

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Act 1979, ss 4.16, 8.3, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, cll 8, 9

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11, Sch 1, cll 11.6, 11.7

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

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No. 55 – Remediation of Land

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

Sutherland Local Environmental Plan 2015, cll 4.3, 4.6, 5.21, 6.1, 6.2

Category:

Principal judgment

Parties:

Alex Karavias (First Applicant)
Maria Karavias (Second Applicant
Sutherland Shire Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
J Amy (Solicitor) (Respondent)

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

File Number(s):

2021/304710

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. DA20/0206 and refusal of a review application, pursuant to s 8.3 of the EPA Act, number RA21/0002 seeking development consent for the demolition of existing dwelling and construction of a new two storey dwelling, basement parking and swimming pool (the Proposed Development) at 103 Holt Road, Taren Point, legally described as Lot 131 DP 9230 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 22 February 2022. I have presided over the conciliation conference.

3. 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 appeal and granting development consent to the development application subject to conditions.

4. The Land is zoned C4 - Environmental Living pursuant to the Sutherland Local Environmental Plan 2015 (SSLEP). Development for the purposes of Dwelling houses is permitted within this zone with development consent in accordance with the Land Use Table in the SSLEP.

5. ln course of these proceedings, the Applicants have provided the Respondent with amended plans which have also been uploaded onto the Planning Portal for the Respondent's acceptance. The parties agree that these amended plans are acceptable. These amended plans are set out in the Agreement pursuant to s 34 of the LEC filed with the Court on 15 March 2022.

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 development application.

7. 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 to be the terms of cl 4.6 of the SSLEP to justify the contravention of a development standard.

8. The parties explained how the jurisdictional prerequisites have been satisfied in a Jurisdictional Statement signed by the parties from which I summarise below.

Jurisdictional prerequisites

9. The parties agree that the Proposed Development, in its amended format meets the objectives of the C4 - Environmental Living zone (C4 zone) pursuant to the SSLEP.

10. In relation to contamination and the remediation of land, the State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) was repealed and replaced with the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) on 1 March 2022. The operative provisions of SEPP 55 were transferred to the Resilience and Hazards SEPP, and pursuant to s 30A(2) of the Interpretation Act 1987 the transfer does not affect the operation or meaning of the provision, and accordingly the provision is to be construed as if it had not been transferred.

11. Clause 7 of SEPP 55 has been transferred to cl 4.6 of the Resilience and Hazards SEPP. The Proposed Development does not propose any change to the use of land which is currently residential and accordingly, consideration of a report specifying the findings of a preliminary investigation of the Site is not required. I have also referred to section 4.3.3 at page 31 of the Statement of Environmental Effects (at Tab 4 of the Class 1 Application) which relevantly notes:

“The site has not been identified as contaminated and as the site has been used for residential purposes there is no reason to suspect that the site is contaminated”

12. I accept that with the conclusion quoted above from the Statement of Environmental Effects, I am satisfied pursuant to cl 4.6 of the Resilience and Hazards SEPP that the Site is suitable for the proposed dwelling house.

13. The requirements of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 are satisfied by the amended BASIX Certificate No 1062713S_04 dated 4 March 2022 issued by SeedHaus (Certifier No. 15/1698) filed 21 March 2022, which confirms that the Proposed Development will meet the NSW Government’s requirements for sustainability.

14. The Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment (GMREP) has been repealed on 1 March 2022 and its operative provisions have been transferred to Ch 11 and Sch 1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). As stated above, the provisions of s 30A(2) of the Interpretation Act 1987 apply, and the transfer does not affect the operation or meaning of the provision, and accordingly the provision is to be construed as if it had not been transferred.

15. I have had regard to the stormwater plans and the Draft/Proposed Conditions of Consent filed 15 March 2022 and I am satisfied as follows:

1. The Site is mapped as being within the Georges River Catchment;

2. The General principles in cl 8 of the GMREP and the Specific planning principles in cl 9 of the GMREP (respectively cll 11.6 and 11.7 of the Biodiversity and Conservation SEPP) have been taken into account.

16. The Statement Environmental Planning Policy (Coastal Management) (CM SEPP) was repealed on 1 March 2022 and its operative provisions have been transferred to the Resilience and Hazards SEPP. Again, as stated above, the provisions of s 30A(2) of the Interpretation Act 1987 apply and the transfer does not affect the operation or meaning of the provision, and accordingly the provision is to be construed as if it had not been transferred.

17. The Site is within the coastal zone pursuant to s 5 of the Coastal Management Act 2016 as a result of the Site being mapped within the Coastal Environment Area and Coastal Use Area in the CM SEPP and the Resilience and Hazards SEPP.

18. I am satisfied, as required by cll 2.12 and 2.13 of the Resilience and Hazards SEPP, that the Proposed Development is not likely to cause an increased risk of coastal hazards on the Site or on other land, as the existing seawall will be well maintained, and the proposed dwelling is sufficiently set back from the foreshore. In addition, I note that the rear yard, adjacent to the foreshore will be used to private open space with landscaping and that there will be no works to the existing sea wall, or any works below the mean high-water mark to affect any foreshore vegetation that will cause increased risk of coastal hazards.

19. The Proposed Development contravenes a development standard in the SSLEP, namely the maximum height of buildings development standard of 8.5 m pursuant to cl 4.3 of the SSLEP. I have read and considered the revised written request pursuant to cl 4.6 prepared by Rod Logan dated 8 March 2022 and filed with the Court on 15 March 2022 (Written Request).

20. There are elements of the proposed roof of the building that exceed the 8.5m height limit variously up to a maximum variation of 0.870mm as depicted in the Revised Height Blanket, an extract of which I have reproduced below.

Fig 1 Image extracted from Revised cl 4.6 Written Request dated 8 March 2022

22. I have considered the Joint Expert Report prepared by Rod Logan, Town Planner for the Applicant and Glenn Apps for the Respondent filed 7 February 2022 (JER). The Experts note that although the Court will apply the test pursuant to cl 4.6 of the SSLEP, they offered the following at par (14) of the JER in response to the Written Request prepared by Rod Logan Planning on 22 June 2021 (Annexure 1 to the Revised Statement of Environmental Effects dated 22 June 2021 submitted to Sutherland Shire Council with the s 8.2 Review of Development Application Determination) filed with the Class 1 Application on 27 October 2021.

“It is agreed that the Clause 4.6 variation demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case by demonstrating that the objectives of Clause 4.5 are achieved notwithstanding the breach of the height standard.

It is agreed that the Clause 4.6 variation demonstrates that the development satisfies the objectives of the zone.

As a result of the objectives of Clause 4.3 and the zone being met, it is agreed that the development is in the public interest.”

23. The Experts conclude at par (16) of the JER that the height variation is minor and that the height variation of the development standard is reasonable exercise in flexibility that has been justified by the cl 4.6 written request. I note that the Experts agree that the portion of the roof that contravenes the maximum building height development standard, does not contribute to overshadowing, view loss, or privacy impacts (page 6 of the JER).

24. I agree with the conclusions reached by the planning experts and note that any contravention of the maximum height of building development standard is in fact further reduced by the amended plans and is set out in detail in the Written Request. Importantly, I note that the contravention does not create an overshadowing impact on adjoining lands, and that the overshadowing falls “mainly on the adjacent vehicular accessway to 105A Holt Rd or the blank façade of No 105 Holt Rd.” (Written Request page 4) and I have referred to the shadow diagram for the winter solstice, 21 June at midday.

25. I am satisfied that the applicant’s Written Request seeking to justify the contravention of the development standard in cl 4.3 of the SSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SSLEP for the reasons set out in the Written Request. I am also satisfied that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out as detailed in the Written Request.

26. Other relevant clauses of the SSLEP are Flood Planning cl 5.21, Acid Sulfate Soils cl 6.1 and Earthworks cl 6.2. I will address these briefly below.

27. Flood planning is addressed in item 6.3 of the Table 3 in the Statement of Environmental Effects submitted with the Class 1 Application concerning Assessment of the Proposed Development against the relevant SSLEP provisions and I am satisfied that the minimum flood levels established by the Lower Georges River Floodplain Risk Management Study and Plan have been satisfied for the basement and habitable spaces of the Proposed Development. There are also appropriate conditions of consent to ensure that the Flood Planning Levels are complied with.

28. An acid sulfate soils management plan is required for the Proposed Development in accordance with the Acid Sulfate Soils Manual, and I am required to be satisfied that any disturbance of acid sulfate soils resulting from the Proposed Development will be managed so as to minimise adverse impacts. I have referred to the Geotechical Investigation and Acid Sulfate Soil Assessment by STS Geotechnics Pty Ltd dated November 2020 contained at Tab 9 of the Class 1 Application and note the conclusion that “there is potential to encounter and disturb potential acid sulfate soil”. In accordance with that conclusion, at Tab 13 of the Class 1 Application there is an Acid Sulfate Soils Assessment Management Plan prepared by STS Geotechnics Pty Ltd dated June 2021, and by letter dated 9 March 2022, the author of that plan has confirmed that the Plan had been prepared in accordance with the Acid Sulfate Soils Manual. I conclude that I am satisfied as required by cl 6.1 of the SSLEP.

29. In relation to earthworks, I have taken into consideration the Geotechical Investigation and Acid Sulfate Soil Assessment by STS Geotechnics Pty Ltd dated November 2020 contained at Tab 9 of the Class 1 Application and am satisfied that the matters to be considered pursuant to cl 6.2 of the SSLEP are addressed.

30. Finally, I had the opportunity to hear from, and I have considered the concerns raised by the neighbouring resident and am satisfied that the matters raised have been adequately addressed through the amended plans and conditions of consent to be imposed on the Proposed Development.

31. For these reasons, 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.

32. 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.

33. The Court notes that:

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’s amending development application no DA20/0206 with the following documents (Amended DA):

1. Architectural drawings by Chris Clout Design dated 4 March 2022;

2. Landscape plans by Site Design + Studios Issue C dated 7 March 2022;

3. Stormwater Plans Rev B dated 24 February 2022;

4. Clause 4.6 Written Request to vary Development Standard prepared by Rod Logan dated 8 March 2022;

5. BASIX Certificate No 1032713S_04 dated 4 March 2022.

2. The Amended DA has been uploaded to the NSW Planning Portal; and

3. The Applicants have subsequently filed the Amended DA with the Court on 15 March 2022.

Orders:

34. The Court orders:

1. The Class 1 application is upheld;

2. The revised cl 4.6 written request prepared by Logan Planning dated 8 March 2022 for a variation to the height of building development standard under cl 4.3 of the Sutherland Local Environmental Plan 2015 is upheld;

3. Development consent is granted to development application no. DA 2010206 for the erection of a dwelling house at Lot 131, DP 9230 (No.103) Holt Road, Taren Point subject to the conditions set out in Annexure ‘A'.

E Espinosa

Commissioner of the Court

Annexure A (253736, pdf)

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Decision last updated: 08 April 2022