McConnell v Sutherland Shire Council

[2024] NSWLEC 1773

Land and Environment Court

New South Wales

Medium Neutral Citation:

McConnell v Sutherland Shire Council [2024] NSWLEC 1773

Hearing dates:

Conciliation conference 30 October 2024

Date of orders:

04 December 2024

Decision date:

04 December 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Consent is granted to Development Application DA23/0828 for consent to re-use the existing timber jetty and ramp and the replacement of the existing jetty piles and construction of a pier supported pontoon with encased piles at 48 Bruce Ave, Caringbah South subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Local Environmental Plan 2015, cll 5.7, 6.1, 6.4, 6.7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

Darren McConnell (First Applicant)
Michelle McConnell (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
G Christmas (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Apex Law (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/274886

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA23/0828 (DA) by Sutherland Shire Council (Council).

2. The DA seeks to re-use an existing timber jetty and ramp and replace the existing jetty piles and construction of a pier supported pontoon with encased piles. The fixed piles would be secured into the seabed. The subject site is identified as Lot 1 in Deposited Plan 1191165 and is known as 48 Bruce Avenue, Caringbah South (“the Site”), although the building work the subject of the development application is proposed to be carried out on Crown land below the mean high water mark of the Site.

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 30 October 2024 and at which I presided. After an adjournment of the conciliation conference, the parties came to an 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 consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

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. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]).

5. Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties’ agreed jurisdictional statement received on 19 November 2024.

Owner’s consent

6. The parties advise that the DA has been made with the consent in writing of the two owners of the land (the Applicants in the proceedings) and the Delegate of the Minister administering the Crown Land Management Act 2016, Department of Planning and Environment – Crown Lands and Public Spaces by letter dated 30 November 2023 (as the nominal owner of the Crown land below mean high water mark). This material was included with the Class 1 Application, filed with the Court on 26 July 2024.

Sutherland Local Environmental Plan 2015

7. The parties advise that the landward part of the site is zoned C3 Environmental Management and the seaward part of the Site is within Zone W1 – Natural Waterways pursuant to the Sutherland Local Environmental Plan 2015 (SLEP). The parties advise that consideration has been given to the zone objectives. Development for the purpose of a “water recreation structure” is permitted with consent in the W1 zone. The proposal meets this definition given “water recreation structure” is defined in the SLEP as “a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp”.

8. Clause 5.7 is concerned with development below mean high water mark and requires consent for such development. The lodgement of the DA accords with this requirement.

9. Clause 6.1 is concerned with acid sulfate soils. While the land is Class 5 under this clause, I accept the parties’ advice that the DA brings no prospects for lowering of water table on adjacent Class 1, 2, 3, or 4 land.

10. Clause 6.4 is concerned with stormwater management. The specifics of the proposal bring no prospects for stormwater management concerns. I accept the parties’ advice and I am satisfied that the development achieves the relevant requirements of subcl (3).

11. Clause 6.7 is concerned with environmentally sensitive land, including riparian land and watercourses. In deciding whether to grant development consent for development on land to which this clause applies, a consent authority must consider whether or not the development is likely to have any adverse impact on the matters listed at cl 6.7(3). I am advised by Council that each of the relevant matters have been considered and no adverse impact is anticipated. Further, before granting consent the consent authority must be satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impacts. The parties advise that the DA was accompanied by a marine habitat report (Tab 6 of the Class 1 Application) which examines relevant concerns. I also note that Department of Primary Industries (Fisheries) has consented to the lodgement of the DA (Tab 7 of the Class 1 Application). The Council is satisfied that the proposal has been designed, sited and will be managed to avoid any significant adverse environmental impacts. I accept this advice and I too am satisfied, relevantly, with regard to the matters at cl 6.7(4).

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Chapter 4 (Remediation of Land) applies with s 4.6 providing that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated or potentially contaminated land, and, if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that consideration has been given to whether the site is contaminated. The parties advise that the site has a historical residential use and that contamination cannot be anticipated. I am satisfied that the requirements of s 4.6 have been met.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

13. The parties have advised me that the DA was notified to surrounding property owners in accordance with Council requirements and no written submissions were received.

Conclusion

14. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

15. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

16. With respect to the amendments of the DA, the Court notes that:

1. The Respondent has approved, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application No DA23/0828 in accordance with the details shown on Plans DWG 01 Site Plan Rev 03 dated November 2024 and DWG 02 Plan and Elevation Rev 03 dated November 2024; and

2. The Applicant has filed the Amended Application with the Court on 15 November 2024.

Orders

17. The Court orders that:

1. The appeal is upheld.

2. Consent is granted to Development Application DA23/0828 for consent to re-use the existing timber jetty and ramp and the replacement of the existing jetty piles and construction of a pier supported pontoon with encased piles at 48 Bruce Ave, Caringbah South subject to the conditions in Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 04 December 2024