Kerstin Thompson Architects Pty Ltd trading as Kerstin Thompson Architects v Sutherland Shire Council

[2022] NSWLEC 1432

Land and Environment Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

Conciliation Conference 5 August 2022

Date of orders:

18 August 2022

Decision date:

18 August 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development Application No. DA22/0151, for the change of use from a dual occupancy to a single dwelling at 9-10 The Esplanade, Cronulla (Lot 1/DP952686 and Lot 1/DP 104946) is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – change of use – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Kerstin Thompson Architects Pty Ltd trading as Kerstin Thompson Architects (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
A Landro, Colin Biggers and Paisley (Applicant)
J Amy, Sutherland Shire Council (Respondent)

File Number(s):

2022/134524

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Sutherland Shire Council of development application number DA 22/0151. The development application seeks consent for the change of use of an approved, but unconstructed, attached dual occupancy to a dwelling house. The development is proposed at 9 and 10 The Esplanade, Cronulla (Lot 1/DP952686 and Lot 1/DP104946, respectively) (‘the site’).

2. The appeal was listed for mandatory conciliation on 5 August 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference. Prior to the conciliation conference agreement was reached between the parties. That decision is that the appeal is upheld, the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The development application was notified by the Respondent from 30 March to 21 April 2022. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) came into force on 1 March 2022. SEPP RH transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. In determining the development application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the SEPP RH. I accept the agreed submission of the parties that the site has been continually used for residential purposes since the original subdivision; that it is considered highly unlikely that the site is contaminated and that there is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

4. SEPP RH at Chapter 2 provides development standards for land that is within a coastal zone. Under the SEPP RH, the site is mapped as a coastal environment area and a coastal use area. The proposed change of use of the development will have no effect on the matters I am required to consider at cl 2.10 and 2.11 of the SEPP RH. Further I am satisfied, pursuant to cl 2.10(2) and 2.11(2) of the SEPP RH, that the development is designed, sited and will be managed to avoid an adverse impact on the matters at sub cl (1) of 2.10 and 2.11.

5. Sutherland Shire Local Environmental Plan 2015 (LEP 2015) applies to the site, which is zoned R4 High Density Residential. Dwelling houses are permitted with consent in the zone. The development application will have no effect on the maximum height, floor space ratio or other development standards contained in LEP 2015.

5. 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.

6. 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.

7. The Court orders that:

1. The appeal is upheld

2. Development Application No. DA22/0151, for the change of use from a dual occupancy to a single dwelling at 9-10 The Esplanade, Cronulla (Lot 1/DP952686 and Lot 1/DP104946) is approved subject to the conditions in Annexure A

.…………………………

D M Dickson

Commissioner of the Court

Annexure A (149774, pdf)

Decision last updated: 18 August 2022