Mullane v Sutherland Shire Council
[2020] NSWLEC 1075
•21 February 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Mullane v Sutherland Shire Council [2020] NSWLEC 1075 Hearing dates: Conciliation conference on 7 and 14 February 2020 Date of orders: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders:
(1) The applicant is granted leave to amend the development application and to rely upon the amended plans set out in condition 3 of Annexure ‘A’.
(2) The appeal is upheld.
(3) Development Application No DA18/1275 is determined by construction of a carport and home office/storage area and use of the hardstand area on lot 2 in DP 1149949, known as 433 Willarong Road, Caringbah South subject to conditions of consent as set out in Annexure ‘A’.Catchwords: DEVELOPMENT APPLICATION – carport and office/storage space – ancillary structure - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sutherland Shire Local Environmental Plan 2015Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Amanda Mullane (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel:
Solicitors:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
McCabe Curwood Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2019/183935 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal against refusal of Development Application (DA) 18/1275 by the Sutherland Shire Council (hereafter the Council) for the construction of a carport and office/storage space on Lot 3 DP 1149949, also known as 433 Willarong Road, Caringbah South (hereafter the site).
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This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 February on site and thereafter in Court, including 14 February to file the agreement. I presided over the conciliation conference. There were submissions by seven residents at this conciliation.
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During the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA to be relied upon in the agreement. The DA was also amended to seek ‘use’ of the hardstand area.
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Based on these amended plans and DA, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors in previous notification/s of the DA, at the conciliation and for the amended DA have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 18/1275 with conditions.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 18/1275, with conditions described in Annexure A.
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The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the Sutherland Shire Local Environmental Plan 2015 (SSLEP). In addition, the Sutherland Shire Development Control Plan 2015 (SSDCP) is of consideration to grant consent to the DA.
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The parties agree that the relevant provisions of the SSLEP are addressed to their satisfaction by the supporting documents and amended plans to the (amended) DA under appeal. The proposed development is located on the portion of the site within the E3 Environmental Management Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the SSLEP, are satisfied.
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The proposed development does not exceed any numeric requirements for development standards of the SSLEP, and satisfies the objectives for the relative clauses. In particular, the proposed development has considered and has had regard to the existing development on the site and surrounding developments that afford views across Yowie Bay. The view impact assessments have been considered in the siting of structures as shown in amended plans of the DA.
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There are portions of the site located on environmentally sensitive land and within the foreshore area, as designated in the SSLEP. The proposed development is located, as shown in amended plans and described in conditions of consent, outside of and in consideration of this area. The requirements for stormwater management have been addressed by condition to satisfy cl 6.4 of the SSLEP.
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The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and conditions of consent, the issues raised by objectors that relate to the controls as specified in the SSDCP are resolved to the satisfaction of the parties. In particular, the issues of view loss, privacy and solar access are addressed to the parties satisfaction in the amended plans. These issues, as raised by residents, are satisfied through the orientation and height of the proposed structure, together with the positioning of windows, deck and privacy screen, as shown on the amended plans.
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The parties agree that the requirements of the SSDCP are complied with based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the SSDCP. During the initial and subsequent notification periods for this DA under appeal, a number of submissions in objection were received by Council. These submissions were considered by the parties, prior to reaching the agreement.
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The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the amended DA, the contentions raised by Council and jurisdictional requirements are resolved to the satisfaction of the parties.
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I am satisfied that there are no jurisdictional impediments to this agreement and that DA 18/1275 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.
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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.
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The Court orders:
The applicant is granted leave to amend the development application and to rely upon the amended plans set out in condition 3 of Annexure ‘A’.
The appeal is upheld.
Development Application No DA18/1275 is determined by construction of a carport and home office/storage area and use of the hardstand area on lot 2 in DP 1149949, known as 433 Willarong Road, Caringbah South subject to conditions of consent as set out in Annexure ‘A’.
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Sarah Bish
Commissioner of the Court
Annexure A (110 KB)
Plans (1.41 MB)
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Decision last updated: 03 March 2020
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