Melrose Terrace Pty Ltd v Sutherland Shire Council

[2020] NSWLEC 1663

Land and Environment Court

New South Wales

Medium Neutral Citation:

Melrose Terrace Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1663

Hearing dates:

Conciliation conference on 2 and 19 November 2020 and 2 December 2020

Date of orders:

21 December 2020

Decision date:

21 December 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

Refer to orders at [9]

Catchwords:

DEVELOPMENT APPEAL – multi dwelling development in low density residential zone – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment

Land and Environment Court Act 1979

State Environmental Planning Policy No 55 – Remediation of Land

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy (Infrastructure) 2007

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Melrose Terrace Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2020/67935

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal by the Sutherland Shire Local Planning Panel of a development application DA18/1509 seeking development consent for demolition and construction of a 12 townhouse development consisting of 9 townhouses and 3 villas with parking on grade (the Proposed Development) at 51-53 Melrose Avenue, Sylvania NSW 2224 (the Site).

2. The proposed development has been amended to seek consent for the demolition of existing structures and the construction of a multi dwelling development containing 11 dwellings with 25 car parking spaces (Amended Application).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 and 19 November 2020 and 2 December 2020. I have presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved leave to amend the development application, rely on amended plans, the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be, and have explained how the jurisdictional prerequisites have been satisfied, as follows:

1. The DA was made by the owner of the site, in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).

2. Under the Sutherland Shire Local Environmental Plan 2015 (LEP):

1. the site is zoned R2 Low Density Residential;

2. multi dwelling housing is permissible with consent in the R2 zone;

3. regard has been given to the zone objectives;

4. the site has a total area of 2,085m²;

5. the proposed building height is 8.5m which complies with the maximum height of 8.5m permitted by cl 4.3;

6. the proposed FSR is 0.52:1 which complies with the maximum floor space ratio of 0.55:1 permitted by cl 4.4; and

7. the proposed landscaped area is 36% which complies with the minimum landscaped area of 35% permitted by cl 6.14.

3. The site does not contain a heritage item and is not within a heritage conservation area.

4. The site is not marked on:

1. the land reservation acquisition map (cl 5.1);

2. the acid sulfate soils map (cl 6.1)

3. the terrestrial biodiversity map (cl 6.5); and

4. the riparian lands and watercourses map (cl 6.7).

5. An amended BASIX Certificate has been provided to accompany the Amended Application to satisfy the requirements in Schedule 1 of the EP&A Regulation.

6. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

7. A traffic report has been provided as required for a Traffic Generating Development pursuant to the Statement Environmental Planning Policy (Infrastructure) 2007.

8. The development has the capacity to dispose of stormwater to an acceptable standard as required by the provisions of the Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment (REP2).

7. 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. I adopt the reasons given by the parties set out above and I have also reviewed the documents and drawings in the Class 1 Application, including the Statement of Environmental Effects prepared by Danial McNamara: Planning Solutions dated December 2018, and the amended plans and documents, including the Conditions of Consent, in particular the deferred commencement conditions 1 and 2 relating to drainage, in order to reach this state of satisfaction.

8. 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.

9. The Court orders:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Site Plan	1003	D	6 November 2020	iDraft Architects
Demolition Plan	1005	D	6 November 2020	iDraft Architects
Sedimentation Plan	1006	D	6 November 2020	iDraft Architects
Basement plan	1010	D	6 November 2020	iDraft Architects
Ground Floor Plan	1011	D	6 November 2020	iDraft Architects
First Floor Plan	1012	D	6 November 2020	iDraft Architects
Roof Plan	1013	D	6 November 2020	iDraft Architects
Elevations 1	2001	D	6 November 2020	iDraft Architects
Elevations 2	2002	D	6 November 2020	iDraft Architects
Elevations 3	2003	D	6 November 2020	iDraft Architects
Sections 1	2004	D	6 November 2020	iDraft Architects
Sections 2	2005	D	6 November 2020	iDraft Architects
Material and Finishes Schedule	3003	D	6 November 2020	iDraft Architects
Building Details	3005	D	6 November 2020	iDraft Architects
Amended landscape plans
Landscape plan: ground floor plan	S34-L101	A	18 November 2020	Canvas landscape architects
Landscape typical detail and maintenance schedule	S34-L102	A	18 November 2020	Canvas landscape architects
Landscape sections	S34-L201	A	18 November 2020	Canvas landscape architects
Stormwater plans
Cover Sheet, Notes and Legend	000	C	17 November 2020	Australian Consulting Engineers
Stormwater Concept Plan Basement Level Sheet 1 of 2	101	C	17 November 2020	Australian Consulting Engineers
Stormwater Concept Plan Basement Level Sheet 2 of 2	102	C	17 November 2020	Australian Consulting Engineers
Stormwater Concept Plan Sheet 1 of 2	103	C	17 November 2020	Australian Consulting Engineers
Stormwater Concept Plan Sheet 2 of 2	104	C	17 November 2020	Australian Consulting Engineers
Onsite Detention Details and Calculations Sheets 1 of 2	105	C	17 November 2020	Australian Consulting Engineers
Onsite Detention Details and Calculations Sheets 2 of 2	106	C	17 November 2020	Australian Consulting Engineers
Miscellaneous Details Sheet	107	C	17 November 2020	Australian Consulting Engineers
Reports
BASIX Certificate no 1158529M prepared by Outsource Ideas P/L dated 27 November 2020

2. The parties agree that the amendments are more than minor for the purposes of s8.15(3) of the Environmental Planning and Assessment Act 1979. Accordingly, The Applicant agrees to pay the Respondent’s costs in the amount of $5,000 within 28 days of the date of orders being made approving the Development Application.

3. The appeal is upheld.

4. Development Application no. DA18/1509 for demolition of existing structures and removal of trees, and construction of a multi dwelling housing development comprising 11 dwellings and associated car parking at 51 – 53 Melrose, Sylvania is approved, subject to conditions contained in Annexure ‘A’.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (288875, pdf)

Architectural Plans (13937026, pdf)

Landscape Plans (4418222, pdf)

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Decision last updated: 21 December 2020