Mghder v Sutherland Shire Council

[2022] NSWLEC 1675

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mghder v Sutherland Shire Council [2022] NSWLEC 1675

Hearing dates:

Conciliation conference on 4 October 2022; 29 November 2022

Date of orders:

08 December 2022

Decision date:

08 December 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA21/0678 for the demolition of existing structures, construction of a shop top housing development and strata subdivision at 21-23 Casuarina Road, Gymea Bay NSW 2227, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – shop top housing development and strata subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Panning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Sutherland Shire Local Environmental Plan 2015, cll 6.2, 6.15, 6.16, 6.17

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Hameed Mghder (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/167594

Judgment

1. These proceedings relate to an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application no. DA21/0678 (DA).

2. The DA, as amended, seeks consent for the demolition of existing structures, construction of a shop top housing development and strata subdivision at 21-23 Casuarina Road, Gymea Bay (the site).

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 was held on 4 October 2022. I presided over the conciliation conference. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant development consent to the DA, subject to conditions.

5. There are jurisdictional prerequisites that must be satisfied before the Court can make orders in accordance with the agreement. The parties have identified and explained how these jurisdictional prerequisites have been satisfied in a joint jurisdictional submission filed with the s34 agreement. In that regard, I note the parties are agreed that:

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65)

6. The proposal is for the construction of 3 dwellings, therefore the provisions of SEPP 65 do not apply.

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

7. An updated BASIX certificate has been provided with the DA. The development is compliant with the required water, thermal and energy provisions.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H)

8. The Council investigations confirm that the site is not registered on its contaminated land register, and it is satisfied that the land is not contaminated.

Sutherland Shire Local Environmental Plan 2015 (SSLEP)

9. The parties agree that the development is permissible with development consent within the B2 Local Centre zone under the SSLEP. Furthermore, that it is consistent with the aims of the SLEP and the relevant zone objectives.

10. The development complies with the maximum height standard, being 9 m and less and the prescribed floor space ratio for the site at 1:1.

11. The proposed earthworks are consistent with the objectives of cl 6.2 of the SSLEP and the Civil Stormwater Design Plans prepared by Greenview Consulting, dated 12 October 2022 in respect of stormwater management are acceptable. Furthermore, the development utilises building materials and construction techniques that are energy efficient, ecologically sustainable and maximise the useful lifecycle of buildings in accord with cl 6.15 of the SSLEP. In short, the development is consistent with the general and residential urban design objectives of cll 6.16 and 6.17 of the SSLEP.

Sutherland Shire Development Control Plan 2015 (SSDCP)

12. In relation to the provisions of SSDCP, which applies to development on the site the parties inform me that:

1. the applicable controls in SSDCP have been considered in the assessment of the proposed development; and

2. a summary of the development’s compliance with relevant controls is provided within the applicant’s Statement of Environmental Effects.

3. The development otherwise complies with applicable controls in SSDCP, and to the extent that they may not, the proposed development represents a feasible alternative solution that achieves the objectives of those controls in satisfaction of the provisions of s 4.15(3A) of the EPA Act.

Notification

13. The DA in its various forms has been notified to nearby residents in accordance with SSDCP. The three notification periods ended on 25 August 2021, 9 September 2021 and 11 March 2022. A summary of the neighbours’ concerns is outlined in Contention 7 of the Statement of Facts and Contentions filed with the Court on 7 July 2022. Further during the Court proceedings, neighbours were notified of the conciliation conference held on-site and they were heard prior to the conciliation phase of the appeal. Their concerns have been considered in the assessment of the DA and the amendment have to a large extent sought to address relevant concerns raised by the neighbours.

Conclusion

14. 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 finally dispose of the proceedings in accordance with the parties’ decision.

15. The Court notes:

1. Sutherland Shire Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 agrees to the applicant amending development application no. DA21/0678 (amended development application) to rely on the following documents:

1. Architectural Drawings prepared by HMD Studio, Rev B, dated 11 November 2022.

2. Civil Stormwater Design Plans prepared by Greenview Consulting, Rev 6, dated 12 October 2022.

3. Landscape Plans prepared by R+M Landscape Architecture, Issue E, dated 26 September 2022.

4. Architectural Solar Study Plans prepared by HMD Studio, Rev B, dated 11 November 2022.

5. Subdivision Plan prepared by Ehsan (Evan) Akar dated 12 October 2022.

6. Hydraulic Hydrant Design Plans prepared by Greenview Consulting, Rev 1, dated 10 August 2022.

7. Hydrant Booster Requirements prepare by Greenview Consulting, dated 10 August 2022.

8. Supplementary Traffic and Parking Report prepared by McLaren Traffic Engineering dated 12 October 2022.

9. Waste Management Plan prepared by HMD Studio, Rev B, dated 28 July 2022.

10. Fire Safety Engineering Response prepared by Design Confidence, dated 8 September 2022.

11. NatHERS Certificate No 0006124380 dated 21 November 2022.

12. BASIX Certificate No 1204081M_03 dated 21 November 2022.

2. The amended development application was uploaded to the NSW planning portal on 18 and 21 November 2022.

3. The applicant has subsequently filed the amended development application with the Court on 22 November 2022.

16. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application DA21/0678 for the demolition of existing structures, construction of a shop top housing development and strata subdivision at 21-23 Casuarina Road, Gymea Bay NSW 2227, subject to the conditions of consent in Annexure A.

……………………..

S Dixon

Senior Commissioner of the Court

Annexure A (309017, pdf)

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Decision last updated: 08 December 2022