Leavers v Sutherland Shire Council

[2020] NSWLEC 1678

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leavers v Sutherland Shire Council [2020] NSWLEC 1678

Hearing dates:

Conciliation conference 22 December 2020

Date of orders:

22 December 2020

Decision date:

22 December 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application No DA19/0922 for the demolition of existing structures and construction of a dwelling with swimming pool and outdoor spa on Lot 101 in Deposited Plan 585873, known as 36 Burraneer Bay Road, Cronulla, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – construction of dwelling house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Richard Barnsley Leavers (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
R Leavers (Litigant in person) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Sutherland Shire Council (Respondent)

File Number(s):

2020/186891

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures, partial demolition of an existing garage, and the construction of a new single-storey dwelling house, a swimming pool and an outdoor spa at 36 Burraneer Bay Road, Cronulla. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). 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 in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). I presided over the conciliation conference, which commenced on the site of the proposed development on 22 December 2020.

3. At the conciliation conference, an agreement under s 34(3) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of development consent subject to conditions, which conditions require a number of design changes to the proposed dwelling and the rear deck (including the removal of planter beds) prior to the issue of the construction certificate.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 – Low Density Residential zone, in which the site is located, pursuant to the Sutherland Shire Local Environmental Plan 2015 (“SSLEP 2015”).

• The proposed development does not breach any of the applicable development standards that apply pursuant to the SSLEP 2015.

• The development application in the Class 1 Application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application No DA19/0922 for the demolition of existing structures and construction of a dwelling with swimming pool and outdoor spa on Lot 101 in Deposited Plan 585873, known as 36 Burraneer Bay Road, Cronulla, subject to the conditions of consent in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (216195, pdf)

**********

Decision last updated: 22 December 2020