Maher v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Maher v Sutherland Shire Council [2018] NSWLEC 1608
Hearing dates:	Conciliation conference on 19 – 20 November 2018
Date of orders:	04 December 2018
Decision date:	04 December 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [20] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Sutherland Shire Local Environmental Plan 2015
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Moskovich v Waverley Council [2016] NSWLEC 1015 Wehbe v Pittwater Council (2007) 156 LGERA 446
Category:	Principal judgment
Parties:	Shannon Maher (First Applicant) Kim Lewise Maher (Second Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: M Staunton (Respondent)   Solicitors: C McFadzean, Swaab Attorneys (Applicants) Sutherland Shire Council (Respondent)
File Number(s):	2018/00129649
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Sutherland Shire Council (Council) of development application DA17/1291 for alterations and additions to an existing dwelling and cabana, including a third storey addition (DA). The site is 3 Sanderson Street, Cronulla NSW 2230, also described as Lot 93 DP 19922 (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation held on 19 and 20 November 2018.

3. At the conciliation conference and in related communication, 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. 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. Acting in accordance with the parties’ decision involves the Court exercising the decision making function under s 4.16 of the EPA Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. Below I reference the jurisdictional prerequisites.

Clause 4.6 variation requests

5. The proposal involves two contraventions to development standards contained in Sutherland Shire Local Environmental Plan 2015 (SSLEP). These were in regard to height of buildings (cl 4.3) and landscaped area (cl 6.14). The applicants (via their planning advisors GLN Planning) have submitted two associated written requests seeking to justify each of the contraventions.

Height of buildings

6. In order for development consent to be granted for a development that contravenes a development standard in SSLEP, I must be satisfied that the applicants’ written request has adequately addressed the matters required to be demonstrated by cl…