McDermott Chiropractic Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1243

Land and Environment Court

New South Wales

Medium Neutral Citation:	McDermott Chiropractic Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1243
Hearing dates:	Conciliation conference on 29 April 2020
Date of orders:	04 June 2020
Decision date:	04 June 2020
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court Orders: (1) Leave is granted to the Applicant to rely upon the amended plans as referred to in condition 1 of Annexure ‘A’ hereto. (2) The Applicant is to pay the respondent’s costs thrown away for the purpose of s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $4,000. (3) The appeal is upheld. (4) Development Application no. DA17/0218, for the demolition of existing structures and construction of a multi dwelling housing development consisting of six (6) townhouses, parking for each dwelling and visitor parking and associated landscape works, is approved subject to the conditions contained in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – multi dwelling housing development – 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Sutherland Shire Local Environmental Plan 2015
Category:	Principal judgment
Parties:	McDermott Chiropractic Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) J Amy (Solicitor) (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2019/232144
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Sutherland Shire Council (Council) of Development Application No DA17/0218 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 2,217m² parcel of land identified as Lot 1 and Lot 2 in DP 603167 at 5 and 5A Gannons Road, Caringbah (the site). The DA as submitted to Council on 07 March 2017 sought consent for demolition of existing dwellings and structures and the construction of a multi dwelling housing development containing 7 x 2 storey dwellings. The DA plans were duly placed on public exhibition, and 19 objections were received.

3. According to the amended Statement of Facts and Contentions filed with the Court on 2 October 2019 the DA plans were subsequently amended by the applicant submitting revised plans to Council on 18 January 2019. The revised plans amended the proposal from one involving 7 x 2 storey dwellings to one involving 5 x 2 storey dwellings and 2 x single storey dwellings with attic spaces. The revised plans were exhibited and nine objections were received by Council. The DA was refused by the Sutherland Shire Local Planning Panel on 2 July 2019, and the Class 1 appeal was filed with the Court on 26 July 2019.

4. The Court arranged two conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over both conferences. The first conciliation conference was held on 11 March and 31 March 2020. On 11 March 2020 the conciliation conference commenced with a view of the site and adjoining properties. Several residents made oral submissions to the Court at the site view. Further amended “without prejudice” plans formed the basis of discussions at the first s34 conciliation conference. That conference was ultimately terminated on 20 April 2020 due to the failure of the parties to reach an agreement by that date.

5. I also presided over the second s34 conciliation conference convened by teleconference due to Covid 19 procedures on 29 April 2020. The discussions that took place in the first conciliation conference resulted in further changes to the DA plans, which were ultimately agreed between the parties at the second conciliation conference. The final agreed plans, by 868 Architects dated 05 April 2020, are those listed in Condition 1 of Annexure A of the agreement between the parties. The draft s34 agreement and some associated documents were filed with the Court on 29 April 2020 and some amended documents, including final draft conditions and the BASIX certificate, were filed on 18 May 2020. The final s34 agreement was filed on 29 May 2020.

6. The main changes between the plans as refused by Council’s Planning Panel of 2 July 2019 and the final plans the subject of the s34 agreement are:

1. One of the two storey dwellings has been removed, resulting in a total of 6 dwellings comprising of 4 x 2 storey dwellings and 2 x single storey dwellings, and a commensurate reduction in 2 resident parking spaces.

2. The Gross Floor Area (GFA) has been reduced from 1044.68m² to 922.37m², resulting in a Floor Space Ratio (FSR) reduction from 0.47:1 to 0.416:1.

3. The floor plans have been amended, including removal of attics in the single storey dwellings, and window treatments adjusted where necessary to mitigate overlooking of adjoining dwellings.

4. The finished floor levels of the ground floors of the dwellings have been adjusted slightly to satisfy flood engineering requirements.

7. 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 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. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 8 and 9 below.

Satisfaction of jurisdiction

8. The relevant jurisdictional matters in relation to Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) are:

1. The development is for the purpose of multi dwelling housing, which is a use permissible with consent in the R2 Low Density Residential zone. I accept the advice of the parties and the evidence contained in the amended application that the development does not contravene the relevant development standards in SSLEP 2015 namely:

1. Clause 4.1E Minimum lot size for multi-dwelling housing. In this case the minimum lot size is 1200m² and the subject site has an area of 2,217m².

2. Clause 4.3 Height of buildings. In this case the maximum height is 8.5m and the subject development does not exceed 8.0m.

3. Clause 4.4 Floor space ratio (FSR). In this case the maximum FSR is 0.55:1 and the subject development has a FSR of 0.416:1.

4. Clause 6.14 Landscaped area. In this case the minimum landscaped area is 35% of the site area and the subject development provides 35.31% landscaped area.

2. I also accept, for the reasons contained in the letter to Council by Wynne Planning dated 23 March 2020 and filed with the Court on 29 April 2020, that the development the subject of the s34 agreement also reasonably satisfies the SSLEP 15 provisions relating to urban design, namely Clause 6.16 Urban design – general and Clause 6.17 Urban design – residential accommodation.

9. The relevant jurisdictional matters in relation to other relevant statutory instruments are:

1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. The parties have confirmed that the site has historically been used for residential purposes, is unlikely to contain any contamination, and therefore no opinion needs to be formed under clause 7(10)(b) – (c) of SEPP 55.

2. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 796842M_04 dated 01 May 2020 has been provided demonstrating compliance with the BASIX SEPP, and the conditions of consent require compliance with this Certificate.

Disposal of proceedings in accordance with the parties’ decision:

10. 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’ agreement.

11. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans as referred to in condition 1 of Annexure ‘A’ hereto.

2. The Applicant is to pay the respondent’s costs thrown away for the purpose of s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $4,000.

3. The appeal is upheld.

4. Development Application no. DA17/0218, for the demolition of existing structures and construction of a multi dwelling housing development consisting of six (6) townhouses, parking for each dwelling and visitor parking and associated landscape works, is approved subject to the conditions contained in Annexure ‘A’.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (312405, pdf)

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Decision last updated: 04 June 2020