McVeigh v Sutherland Shire Council

[2025] NSWLEC 1006

Land and Environment Court

New South Wales

Medium Neutral Citation:

McVeigh v Sutherland Shire Council [2025] NSWLEC 1006

Hearing dates:

Conciliation conference on 17 December 2024

Date of orders:

08 January 2025

Decision date:

08 January 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA24/0255 for the demolition of existing structures, tree removal, construction of an attached dual occupancy and two in-ground swimming pools, and strata subdivision at 119 Taren Road, Caringbah South NSW 2229 (legally known as Lot 4 DP 387885), is determined by grant of consent, subject to the conditions set out in Annexure ‘A’ to this agreement.

Catchwords:

DEVELOPMENT APPLICATION: attached dual occupancy development in C4 Environmental Living zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Shire Local Environment Plan 2015, cll 4.1B, 4.3, 4.4, 6.1, 6.2, 6.4, 6.8, 6.14, 6.16, 6.17, Sch 1

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Category:

Principal judgment

Parties:

Andrew Benjamin McVeigh (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
P Murray (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/277751

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Sutherland Shire Council (the Council) of Development Application No. DA24/0255 seeking consent for the demolition of existing structures, tree removal, construction of an attached dual occupancy and two in-ground swimming pools, and strata subdivision, at 119 Tarren Point Road, Caringbah South.

2. The matter was initially listed before me under s34AA of the Land and Environment Court Act 1979 (LEC Act) on 17-18 December 2024. However, on 11 December 2024, the parties advised the Court that they had reached in-principle agreement, and sought the matter to be re-allocated to me under s 34 of the LEC Act.

3. On 17 December 2024, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

4. Prior to the conciliation conference, the parties reached agreement on the matters in contention, subject to the preparation of amended plans for which an adjournment was granted, and a signed agreement was submitted to the Court on 11 December 2024, in accordance with s 34(10) of the LEC Act.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

6. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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.

8. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. The DA was lodged with the Council on 27 May 2024, and was publicly notified between 3 June 2024 - 18 June 2024 in response to which one submission was received. I also note that amended plans and other documents were also notified by Council between 25 November - 3 December 2024, in response to which no submissions were received.

10. The site is located within the C4 Environmental Living zone according to the Sutherland Shire Local Environment Plan 2015 (SSLEP), in which dual occupancy development is permitted with consent, where consistent with the objectives of the C4 zone, that are:

•  To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•  To ensure that residential development does not have an adverse effect on those values.

•  To allow for development that preserves and enhances the natural landscape setting of the locality.

•  To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

•  To ensure the character of the locality is not diminished by the cumulative impacts of development.

•  To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

•  To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

•  To share views between new and existing development and also from public space.

11. As the site is within the C4 zone, cl 28 of Sch 1 of the SSLEP is relevant as it permits development for the purpose of dual occupancies but only if the lot is 700m² or more. The site has an area of 777.80m².

12. The DA also proposes strata subdivision. Clause 4.1B of the SSLEP likewise requires a minimum lot size of 700m² for development consent to be granted for strata subdivision of a dual occupancy on a lot of land in the C4 zone. As the Site area is greater than 700m², the DA complies with the minimum lot size requirements under cl 4.1B.

13. The proposal also complies with the maximum building height applicable to the Site of 8.5m, according to the relevant map at cl 4.3(2) of the SSLEP. The proposed building has a maximum height of 7.9m.

14. The proposal also complies with the floor space ratio (FSR) standard of 0.5:1, according to cl 4.4 of the SSLEP. The proposed FSR for dwelling 1 and 2 is 0.49.6:1.

15. The site is identified as Class 5 Acid Sulfate Soils according to the relevant map at cl 6.1(2) of the SSLEP. The Port Hacking River is located within 500m of the site and is mapped as Class 1. The proposal requires excavation to approximately 18m AHD which is well above the 5m AHD applicable to Class 5 Acid Sulfate Soils and so development consent is not required for the carrying out of such works.

16. Relatedly, the earthworks referred to above proposes excavation for the basement levels and a single driveway that the planning experts agree reduces excavation and avoids significant alteration of the landform. The DA is supported by a Geotechnical Report prepared by Green Geotechnics dated 13 June 2024 which contains recommendations to manage variations to subsurface and groundwater conditions during construction. The recommendations are reflected in agreed conditions of consent. I have considered those matters at cl 6.2(3) of the SSLEP and, on the basis of the Geotechnical Report, the landscape plans prepared by R+M Landscape Architects, and Stormwater plans prepared by Hyve Designs (Stormwater Plans), I conclude those matters are adequately addressed.

17. I am satisfied in respect of those matters relating to stormwater management at cl 6.4(3) of the SSLEP for the reasons that follow:

1. Firstly, the landscape plans show a landscaped area comprising deep soil and permeable surfaces of 40% of the site area which I am satisfied maximises the use of water permeable surfaces on the land.

2. Secondly, the Stormwater Plans show two 5,000L rainwater tanks for reuse for indoor toilets, laundries, landscaping and pool top-up as per BASIX requirements which satisfies me that on-site stormwater retention is proposed.

3. Thirdly, the Sediment Erosion Plan at drawing SE01 of the Stormwater Plans provides that any water will be prevented from entering permanent drainage systems unless relatively sediment free and/or filtered through an approved structure and requires inspection, cleaning and repair of any temporary erosion and sediment control measures.

18. The site is identified on the relevant Natural Landforms Map at 6.8(2) of the SSLEP as Environmentally Sensitive Land, and so the Court must consider whether the development is likely to have any adverse impact on the environmental and scenic qualities of natural landforms. The town planning experts in this matter agree, and I am satisfied, that the provision of a single driveway, in lieu of two, reduces excavation and results in the retention of existing ground levels, reducing the dominance of development when viewed in its streetscape setting, and providing additional opportunities for tree planting within the front setback to minimise the impact of development in the area, and enhance the landscape setting. To the extent the single driveway arrangement requires the removal of a street tree designated Tree T2, I note the agreement of the arboricultural experts that the tree exhibits signs of decline due to borer attack.

19. The landscaped area at [17(1)] complies with the minimum percentage of the site area at cl 6.14(3) of the SSLEP.

20. In respect of those matters to be considered at cl 6.16 of the SSLEP, the parties agree that the amendments to the proposal contained in revised architectural, landscape and Stormwater plans have the effect of retaining natural ground levels around the development in a way that responds to natural landforms, and additional tree planting within the front setback enhances the visual quality of the area.

21. In respect of those matters to be considered at cl 6.17 of the SSLEP, I note the parties advice that the amendments to the driveway improve the streetscape, and window treatment to side setbacks address overlooking and privacy, while amended landscape plans showing additional trees in the front setback serve to integrate the development in a well-designed landscape setting.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

22. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent. The development application is accompanied by an Arboricultural Impact Assessment prepared by Jacksons Nature Works and dated 20 April 2024 (AIA) which assesses trees on the site and in the road reserve.

23. Tree T2, a Eucalyptus haemastoma, is proposed to be removed. While Mr Jacksons initial assessment at p 6 of the AIA is that Tree T2 shows good vitality, and the arboricultural experts agree, at p 4 of the joint expert report filed with the Court on 24 October 2024, that the tree has “‘High’ landscape significance and retention value”, the experts also agree that the tree may be removed due to borer damage. As a result of amendments agreed between the parties, two additional trees are now agreed to be removed from the road reserve, to be replaced with appropriate species in accordance with Condition 23 of the agreed conditions of consent at Annexure A and as identified on the amended landscape plans prepared by R+M Landscape Architecture.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. The parties have considered whether the land is contaminated and, on the basis of the statements made in the Statement of Environmental Effects, prepared by Avenue Town Planning dated 20 May 2024, and searches undertaken by the Council, I conclude it is not, and that it is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP).

State Environmental Planning Policy (Sustainable Buildings) 2022

25. The application is accompanied by a BASIX certificate (Cert No. 1743086M_02 dated 22 November 2024) prepared by Evergreen Energy Consultants Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022.

26. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

27. 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’ decision.

28. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

29. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority has, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, consented to the Applicant amending development application No. DA24/0255 in accordance with the following plans and documents:

Documents

1.

Schedule of Amendments prepared by Couvaras Architects dated 25 November 2024

2.

Revised Architectural Plans prepared by Couvaras Architects:

Drawing No.	Description	Rev.	Date
00	Cover Sheet	L	22.11.2024
02	Site Plan	K	07.11.2024
03	Demolition Plan	K	07.11.2024
04	Basement Floor Plan	K	07.11.2024
05	Ground Floor Plan	K	07.11.2024
06	Level 1 Floor Plan	K	07.11.2024
07	Roof Plan	K	07.11.2024
08	Pool Plan	K	07.11.2024
09	Elevations	L	22.11.2024
11	Sections	L	22.11.2024
11A	Sections	L	22.11.2024
12	External Material and Finishes	K	07.11.2024
13	Area Floor Plan	K	07.11.2024
14	Draft Strata Subdivision Plan	K	07.11.2024
15	Construction & Sediment Control Plan	K	07.11.2024
16	Shadow Diagram – Existing Neighbour	K	07.11.2024
16B	Shadow Diagrams – Existing Neighbour with fence	K	07.11.2024
17	Shadow Diagram – Proposed DA	K	07.11.2024
18	Elevational Shadow – No 121	K	07.11.2024
19	Solar Access to Dwelling B living	K	07.11.2024

3.

Revised Landscaping Plans prepared by R+M Landscape Architecture:

Drawing No.	Description	Rev.	Date
LP01	Landscape Titlesheet	D	22.11.2024
LP02	Landscape Plan 01	D	22.11.2024
LP03	Landscape Plan 02	D	22.11.2024
LP04	Landscape Details	D	22.11.2024

4.

Revised Stormwater Plans prepared by Hyve Designs:

Sheet No.	Description	Rev.	Date
SW01	Stormwater Plan – Roof Plan	C	21.11.2024
SW02	Stormwater Plan – Basement Carpark Plan	C	21.11.2024
SW03	Stormwater Details	C	21.11.2024
SE01	Sediment and Erosion Plan	C	21.11.2024
SE02	Sediment and Erosion Details	C	21.11.2024

5.

BASIX Certificate No. 1743086M_02 prepared by Evergreen Energy Consultants Pty Ltd issued 22 November 2024 and BASIX stamped plans

6.

NatHERS Summary Certificate No. 0011572750 and NatHERS Certificates for Unit A and Unit B dated 22 November 2024

7.

CTX45-PR Turntable Specification prepared by Australian Turntables

2. The Amended application was filed with the Court on 11 December 2024.

Orders

30. The Court orders that:

1. The appeal is upheld.

2. Development application No. DA24/0255 for the demolition of existing structures, tree removal, construction of an attached dual occupancy and two in-ground swimming pools, and strata subdivision at 119 Taren Road, Caringbah South NSW 2229 (legally known as Lot 4 DP 387885), is determined by grant of consent, subject to the conditions set out in Annexure A to this agreement.

T Horton

Commissioner of the Court 

Annexure A

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Decision last updated: 09 January 2025