Musolino v Sutherland Shire Council

[2023] NSWLEC 1604

Land and Environment Court

New South Wales

Medium Neutral Citation:

Musolino v Sutherland Shire Council [2023] NSWLEC 1604

Hearing dates:

Conciliation Conference on 27 September 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) prepared by Wynne Planning, dated September 2023 in relation to cl 4.3 of SSLEP 2015 is upheld.

(2)   The appeal is upheld.

(3)   Development Application No. 22/0874 is determined by the grant of consent for alterations and additions to the existing dwelling, construction of a new garage and associated works at Lot 22 in DP 607501 known as 10 Goldfinch Place, Grays Point, subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential development alterations and additions – justification of contravention of maximum height of building development standard – 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 2021, s 38

Land and Environment Court Act 1979, s 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021, Pt 2.2, ss 2.10, 2.11

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.1, 6.4, 6.5, 6.7, 6.8, 6.9, 6.14

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Ilario Musolino (First Applicant)
Lisa Marie Musolino (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/118698

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 refusal of development application No. 22/0874 for alterations and additions to the existing dwelling, construction of a new garage and other associated works (the Proposed Development) at 10 Goldfinch Place, Grays Point legally described as Lot 22 DP 607501 (the Site).

2. The proceedings commenced as a conciliation and hearing on site pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). The Proposed Development was notified by the Respondent between 6 October 2022 and 20 October 2022 and the amended plans referred to below were provided to the objectors present on site.

3. The matter continued to a mandatory conciliation conference under s 34AA(2) of the LEC Act between the parties.

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 the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Following the filing of the Statement of Facts and Contentions by the Respondent, the parties undertook prior without prejudice discussions. As a result of these discussions, amended plans were provided to Council and the applicant sought the leave of the Court to rely on amended plans which was granted on 13 September 2023. Key information provided which addressed Council’s Contentions in the proceedings include the following:

1. Building Height:

1. Additional sections added to show the proposed heights of all of the roofs (new and existing) Drawing A305 & A306 added.

2. 3D height blanket included showing levels from existing floor levels including areas below natural ground level (Drawing A902).

3. Additional levels of properties above Goldfinch added to the survey and the site sections.

2. Landscaped Area:

1. Additional landscape provided in the front setback and compliance achieved (Refer landscape drawing L01A).

2. Green roof over garage deleted.

3. Foreshore Building Line encroachment: Juliet balconies removed.

4. View loss:

1. Extent of garage reduced to maintain current site lines on the eastern side of the garage (Drawing A11).

2. View corridor detail and photos included in drawing set (Drawings A505-A508, A306).

5. Setbacks:

1. Garage reduced and new setback is 5.7m (Drawing A110). This is consistent with garage locations on either side.

2. Bins have been relocated and now not visible from the street (Drawing A109).

6. Garaging and parking:

1. New double garage with car lift at street level (Drawing A110)

2. 1 single garage door (Drawing A206)

3. 1 on street car space accommodated

4. 3 hardstand visitor/delivery spaces provided (Drawing A110)

5. Existing garage to be retained (Drawing A109)

7. Other:

1. Entry stairs relocated.

2. Storage relocated to accommodate landscape requirements.

3. Minor changes to roof design over existing garage and entry corridor to accommodate changes to hardstand etc.

4. Window changes at garage level due to change in design.

6. 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. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. 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 the terms of cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to justify the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement.

Justification of the contravention of the height of building development standard

9. The maximum height of buildings is 8.5m prescribed in cl 4.3 of the SSLEP.

10. The Proposed Development will result in a contravention of the height of building development standard limited to a minor portion of the roof form only, being a minor part of the rear of the garage, and part of the second-floor level as depicted in the Site Section in the cl 4.6 written request reproduced below at Fig 1.

11. The existing dwelling has a maximum height of approximately 12m above ground level. The Proposed Development involves the removal of the existing pitched roof and replacing it with a flat roof with a maximum height of 12.366m above existing ground level for a minor portion of the roof due to existing and previously altered ground levels on Site.

12. The Applicant relies on a written request pursuant to cl 4.6 of the SSLEP prepared by Wynne Planning dated September 2023 and filed on 27 September 2023 (Written Request) to justify the contravention of the height of building development standard.

13. The parties submit that the Proposed Development does not unreasonably impact on views and reduces any impacts on views. The Site is a significantly sloping site, along the foreshore. The Respondent advises that the Written Request sets out the basis for the variation and this is accepted by Council. I too have formed the requisite state of satisfaction required by cl 4.6 of the SSLEP and set out my reasons.

14. Firstly, the Written Request demonstrates that compliance with the development standard is unreasonable and unnecessary by relying on the first of the five ways to do so as set out in the judgement of Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (“Wehbe”). The first of the Wehbe principles is achieving the objectives of the development standard and pages 5 and 6 of the Written Request demonstrates how the Proposed Development achieves the objectives of the standard of cl 4.3 of the SSLEP.

15. Secondly, the Written Request demonstrates that there are sufficient environmental planning grounds to justify the contravention of the development standard by explaining, inter alia, as follows at page 8:

“The proposed height variation is due to existing altered ground levels and would almost fully comply if measured above assumed natural ground level. The Figure 1 demonstrates that the areas of height variation are due to the existing excavated altered ground level below. The green line showing the existing altered ground levels which were excavated previously for the current dwelling. The blue dotted line shows the assumed natural ground level with the 8.5m height line above indicating the proposal would almost fully comply as it is appropriately stepped down the natural topography.”

16. The Written Request demonstrates that the Proposed Development achieves the zone objectives at pages 6 and 7.

17. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 4.3 of the SSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SSLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

18. In relation to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RAH):

1. The land is mapped in the Coastal Use Area and as the Coastal Environment Area under Pt 2.2 of the SEPP (RAH).

2. The parties have considered the proposal and are satisfied that the impacts set out in s 2.10(1) will be avoided (having regard to s 2.10(2)).

3. Similarly, the parties have considered the proposal and are satisfied that the impacts set out in s 2.11(1)(a) will be avoided (having regard to s 2.11(1)(b)).

19. There are a number of jurisdictional prerequisites in the SSLEP which are also addressed by the parties.

20. The Proposed Development is for alterations and additions to an existing dwelling house and is permissible in the C3 Environmental Management Zone.

21. The maximum floor space ratio (FSR) development standard prescribed for the Site pursuant to cl 4.4 of the SSLEP of 0.5:1 is complied with as the Proposed Development provides an FSR of 0.43:1.

22. The Site is classified Class 5 for the purpose of Acid Sulfate Soils, cl 6.1 of the SSLEP and as the water table will not be lowered by the proposed works, no management plan is required.

23. I am satisfied that the Proposed Development is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting the on-site infiltration of water, and satisfies the matters provided in cl 6.4 of the SSLEP regarding Stormwater management because consent condition 10 at Annexure A has been imposed to manage stormwater issues on site during construction.

24. In relation to cl 6.5 relating to Environmentally sensitive land – terrestrial biodiversity, the parties have considered cl 6.5 and are satisfied of the matters set out in cl 6.5(4) which provides a requirement for satisfaction that the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or if that impact cannot be minimised—the development will be managed to mitigate that impact.

25. Similarly, in relation to cl 6.7 relating to Environmentally Sensitive land – riparian land and watercourses, the parties have considered the matters in cl 6.7(3) and are satisfied of the matters in cl 6.7(4) which provides a requirement for satisfaction that the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or if that impact cannot be minimised—the development will be managed to mitigate that impact.

26. The same considerations apply to cl 6.8 of the SSLEP relating to Environmentally Sensitive Land – environmental scenic qualities of natural landforms where the parties have considered whether the development is likely to have any adverse impact on the environmental and scenic qualities of natural landforms and concluded there are no unacceptable impacts in terms of cl 6.8(4) of the SSLEP.

27. In satisfaction of cl 6.9 of the SSLEP regarding limited foreshore development, the footprint of the proposal does not extend any further forward of the foreshore building line than the existing residential accommodation (cl 6.9(2)) and the appearance of the development, from both the foreshore area and the adjacent waterway will be compatible with the surrounding area (cl 6.9(3)).

28. The SSLEP at cl 6.14 provides for minimum landscaped areas in certain residential, business industrial and environmental protection zones. The SSLEP usually requires a landscaped area of 40% of the site area, however, cl 6.14(4A) provides that “development consent may be granted to relevant development on land to which this clause applies, even though the percentage of the site area consisting of landscaped areas is less than the percentage shown on the Landscape Area Map in relation to the land”, and sets out a number of criteria to be satisfied of in cll 6.14(4A)(a) – (b). The parties are satisfied of the matters set out in cl 6.14(4A), and on that basis, no cl 4.6 written request is required to justify any contravention of the minimum landscaped area. The Proposed Development provides as landscaped area of 32.07% of the Site, whereas the existing dwelling/ site only provides 31.69% landscaped area.

29. 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 as I have set out in this judgment.

30. 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.

Notations:

31. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. 22/0874 to include the following amended plans and reports:

Plan Name	Plan No.	Rev	Dated	Drawn By
Landscape Plans
Landscape Plan	L01	B	14/9/23	Zenith Landscape Designs
Landscape Plan	L02	B	14/9/23	Zenith Landscape Designs
Landscape Plan	L03	B	14/9/23	Zenith Landscape Designs
AMENDED CLAUSE 4.6	SEPTEMBER 2023	WYNNE PLANNING

(Amended DA Documents)

2. The Amended DA documents were filed with the Court on 26 and 27 September 2023.

Orders:

32. The Court orders that:

1. The written request under cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) prepared by Wynne Planning, dated September 2023 in relation to cl 4.3 of SSLEP 2015 is upheld.

2. The appeal is upheld.

3. Development Application No. 22/0874 is determined by the grant of consent for alterations and additions to the existing dwelling, construction of a new garage and associated works at Lot 22 in DP 607501 known as 10 Goldfinch Place, Grays Point, subject to the conditions contained at Annexure ‘A’.

I certify that this and the preceding 8 pages are a true copy of my reasons for judgment.

E Espinosa

Commissioner of the Court

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Annexure A

Decision last updated: 13 October 2023