Mace v Sutherland Shire Council

[2025] NSWLEC 1351

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mace v Sutherland Shire Council [2025] NSWLEC 1351

Hearing dates:

Conciliation conference on 13 May 2025

Date of orders:

20 May 2025

Decision date:

20 May 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA23/0297 for the demolition of an existing dwelling and swimming pool and the construction of a new dwelling house including a covered rooftop terrace, a swimming pool and spa and alterations to an existing boatshed on land described as Lot 29 DP 9610 known as 9 Taloombi Street, Cronulla, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – appeal of condition of consent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Resilience and Hazards) 2021, ch 2, ss 2.10, 2.11, 4.6

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.4, 6.7, 6.9, 6.14, 6.16, 6.17

Category:

Principal judgment

Parties:

Steven Mace (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
K Danysz (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/425378

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from an appeal of a condition of consent imposed by Sutherland Shire Local Planning Panel on development consent DA23/0297. This application seeks consent for the demolition of an existing dwelling and swimming pool and the construction of a new dwelling house including a covered rooftop terrace, a swimming pool and spa, and alterations to an existing boatshed at 9 Taloombi Street, Cronulla.

2. The applicant is appealing the imposition of condition 8(4), which requires the deletion of the roof structure on the upper level of the dwelling, and removal of the lift entrance and overrun on this level.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

4. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 May 2025. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached an agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

6. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Council agreed to the applicant amending the development application to clarify the acoustic treatment to the rooftop awning.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note, and from this I note the following points.

Jurisdictional matters

8. The development application was made with the written consent of the owner of the land.

9. The application was adequately notified from 20 June to 5 July 2023. Four submissions were received, but no oral submissions were made at the commencement of proceedings. Based on the amended application, and the information in the Joint Report of planning experts, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

10. Pursuant to Ch 2 – Coastal Management of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the site is located within the Coastal Environment Area and Coastal Use Area. From the parties’ submission, the visual assessment in the Joint Report of planning experts and the assessment in the Statement of Environmental Effects by Planning Ingenuity dated 6 April 2023 (SEE), I am satisfied that the matters listed in ss 2.10(1) and 2.11(1)(a) have been considered, and that the proposed development satisfies the matters set out in ss 2.10(2) and 2.11(1)(b).

11. Section 4.6 of the SEPP R&H requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that the site has a history of residential use and there is no known contamination on the site nor any history of contaminating activities and subsequently, the site is suitable for the intended use.

12. The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to State Environmental Planning Policy (Building and Sustainability Index: BASIX) 2004. Compliance with the commitments within this certificate is further required through a condition of consent.

13. The subject site is zoned C4 Environmental Living under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

14. Pursuant to SSLEP cl 4.3, a maximum building height of 8.5m applies to the subject site, which the proposed development complies with.

15. SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development exceeds this maximum, with an FSR of 0.636:1.

16. As a result of this exceedance, cl 4.6(3) of the SSLEP allows the applicants to request a contravention of this development standard through the submission of a written request. This document must demonstrate that compliance with the height of buildings development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a request prepared Planning Ingenuity as Annexure B of the SEE (the cl 4.6 request). Pursuant to SSLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request for FSR demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C4 Environmental Living Zone and the FSR development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The cl 4.6 request for FSR establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. Despite the exceedance of the standard, the proposed FSR represents a reduction from the existing condition.

2. The additional FSR is distributed across the building at each level, and is not readily perceptible. The breach does not result in any adverse impacts on adjoining properties, or a dwelling that is excessive in terms of bulk and scale within its context.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

17. From the stormwater plans by Greenview Consulting, the architectural drawings by Innovate Architects and the landscape drawings by Site Design + Studios, all within the Class 1 application, I am satisfied that the stormwater requirements of SSLEP cl 6.4 are met in the proposed development.

18. The site is identified as Environmentally Sensitive Land pursuant to cl 6.7 of the SSLEP. From the architectural plans and the parties’ submission, I accept that the matters listed in cl 6.7(3) have been considered, and that the development has been designed, sited and will be managed to avoid any significant adverse environmental impact on riparian land and watercourses.

19. Although the site includes land designated as foreshore area pursuant to SSLEP cl 6.9, no change is proposed within the foreshore area and the requirements of this clause are met.

20. SSLEP cl 6.14 prescribes a minimum landscaped area of 40% of the site area. The proposed development does not achieve this, with a proposed landscaped area of 22.6%. Again, pursuant to SSLEP cl 4.6, a written request to vary this standard has been submitted as Annexure C to the SEE. Pursuant to SSLEP cl 4.6, I am satisfied that:

1. The cl 4.6 request for landscaped area demonstrates that compliance with the landscaped area development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C4 Environmental Living Zone and the landscaped area development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The cl 4.6 request for landscaped area establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the proposed landscaped area represents a significant increase from the current provision on site of 11.6%. The landscape increases the provision of deep soil, and improves the existing landscaped character and quality from the streetscape and foreshore.

3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

21. Based on the parties’ submissions, the architectural drawings, and the information contained in the SEE, I accept that the considerations regarding general urban design and urban design for residential accommodation, as set out in SSLEP cll 6.16 and 6.17 respectively, have been considered and adequately addressed in the amended application.

Conclusion

22. 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

23. The Court notes:

1. Sutherland Shire Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant further amending Development Application DA23/0297 to include the documents set out in Annexure B.

2. The Applicant provided the amended Development Application to the Court on 8 May 2025

24. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA23/0297 for the demolition of an existing dwelling and swimming pool and the construction of a new dwelling house including a covered rooftop terrace, a swimming pool and spa and alterations to an existing boatshed on land described as Lot 29 DP 9610 known as 9 Taloombi Street, Cronulla, subject to the conditions of consent at Annexure A.

E Washington

Commissioner of the Court

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Annexure A.383 KB.pdf

Decision last updated: 20 May 2025