MTT Development Pty Ltd v Sutherland Shire Council

[2021] NSWLEC 1408

Land and Environment Court

New South Wales

Medium Neutral Citation:

MTT Development Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1408

Hearing dates:

Conciliation conference on 30 June 2021

Date of orders:

19 July 2021

Decision date:

19 July 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The applicant be granted leave to rely on the plans described in condition 1 of Annexure ‘A’.

(2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) in the amount of $3,000 within 28 days from the date of these orders.

(3) The appeal is upheld.

(4) Development Application DA20/0766 for the demolition of existing structures, construction of a 5 storey residential flat building containing 5 units and underground parking for 11 vehicles at 99 Willarong Road, Caringbah is approved subject to the conditions contained at Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 77 and Sch 1

Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment

Land and Environment Court Act 1979, s 34

Sutherland Local Environmental Plan 2015, cll 2.3, 4.1, 4.3, 4.4, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.14, 6.16, 6.17

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy 65 (Design Quality of Residential Flat Development)

State Environmental Planning Policy (Building Sustainability Index BASIX) 2014

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Sutherland Development Control Plan 2015

Category:

Principal judgment

Parties:

MTT Development 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):

2021/82652

Publication restriction:

No

Judgment

1. COMMISSIONER: MTT Development Pty Ltd (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of its development application DA20/0766 seeking consent for the demolition of existing structures, and construction of a 5 storey residential flat building containing 5 units and underground parking for 11 vehicles (the Proposed Development) at 99 Willarong Road, Caringbah (the Subject Site).

2. The Subject Site is zoned R4 High Density Residential under the provisions of cl 2.3 of Sutherland Shire Local Environmental Plan 2015 (SLEP). The Proposed Development is permissible with consent on the Subject Site.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 30 June 2021, and I presided over the conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference, and no objectors had sought to make representations to the Court in relation to the proceedings.

6. 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 the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept that:

1. the long-term use of the Subject Site has been for residential purposes, and no change of use is proposed;

2. on this basis of its past use, the Subject Site is unlikely to be contaminated and it remains suitable for its proposed use for a residential dwelling;

2. in relation to provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided a BASIX Certificate (No 833303M_04) dated 22 June 2021 to accompany the development application to satisfy the requirement in Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and SEPP BASIX;

3. in relation to provisions of Greater Metropolitan Regional Environmental Plan No.2 – Georges River Catchment (REP), the Parties have confirmed, and I am satisfied, that the general and specific principles within clauses 8 and 9 of REP have been considered in relation to the proposed Development;

4. in relation to provisions of State Environmental Planning Policy 65 (Design Quality of Residential Flat Development) (SEPP 65), an amended Design Verification Statement has been prepared by Couvaras Architects dated 29 June 2021 in respect of the Amended Plans verifying the proposal complies with the requirements of the Apartment Design Guide. I am satisfied that the amended application is consistent with the provisions of SEPP 65;

5. in relation to the provisions of SLEP, the Parties have confirmed, and I accept, that the Applicant’s development application (as amended) satisfies applicable provisions of SLEP. Where required, this satisfaction is supported through the imposition of conditions of consent within Annexure A to this judgment. In particular, the Parties have confirmed, and I accept, that the following specific provisions of SLEP have been satisfied by the Applicant’s Proposed Development (as amended):

1. the minimum lot size provisions of cl 4.1;

2. the height of buildings development standard in cl 4.3;

3. the floor space ratio development standard in cl 4.4;

4. in relation to cl 6.1 concerning acid sulfate soils, the Subject Site does not fall within an area mapped on the SLEP acid sulfate soils map;

5. in relation to cl 6.2 concerning earthworks, the matters identified in cl 6.2(3) have been considered, in particular the matters at cl 6.2(3)(a)-(h);

6. in relation to cl 6.3 concerning flood planning, the Subject Site is not located within an area marked on the flood maps in the SLEP, and as a consequence the Proposed Development:

1. is compatible with the flood hazard of the land;

2. will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties;

3. incorporates appropriate measures to manage risk to life from flood;

4. will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and

5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding;

7. in relation to cl 6.4 concerning stormwater management, the Applicant’s plans, as amended, and other documentation upon which it relies, have demonstrated that the Proposed Development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water;

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

8. In relations to cll 6.5 to 6.9, the Subject Site is not located within land marked as any of the types of environmentally sensitive land identified within these clauses, and so further consideration of the application of the clauses is not required;

9. in relation to cl 6.14 concerning landscaped areas within certain zones, including land zoned R4, the Applicant’s amended plans comply with the minimum area required for landscaping in compliance with the Landscape Area Maps in the SLEP;

10. In relation to cll 6.16 and 6.17, the urban design matters identified, as well the principles of crime prevention noted at cl 6.16(2), have been considered in relation to the Proposed Development;

6. the Proposed Development, as amended, was notified in October 2020 consistent with the provisions of Sutherland Development Control Plan 2015, and cl 77 of the EP&A Regulation. The Parties advise, and I accept, that they have given consideration to the submissions made in response to notification of the Proposed Development in reaching agreement in this appeal.

9. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied.

11. I am further 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.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

13. 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.

14. The Court orders that:

1. The Applicant be granted leave to rely on the plans described in condition 1 of Annexure ‘A’.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) in the amount of $3,000 within 28 days from the date of these orders.

3. The appeal is upheld.

4. Development Application DA20/0766 for the demolition of existing structures, construction of a 5 storey residential flat building containing 5 units and underground parking for 11 vehicles at 99 Willarong Road, Caringbah is approved subject to the conditions contained at Annexure ‘A’.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (282808, pdf)

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Decision last updated: 19 July 2021