Nelson v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Nelson v Sutherland Shire Council [2024] NSWLEC 1441

Hearing dates:

Conciliation conference on 4, 18 and 22 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

                          (1) The appeal is upheld.

    (2) Development Consent is granted for Development Application DA23/0352 for the demolition of existing structures and construction of a dual occupancy with strata subdivision at 123 Nicholson Parade Cronulla in the terms set out in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy and strata subdivision – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

State Environmental Planning Policy (Resilience and Hazards), s 4.6

Sutherland Shire Local Environmental Plan 2015, cll 2.5, 4.1B, 6.2, 6.4, 6.13A, 6.14, 6.16, 6.17, Sch 1 cl 28

Cases Cited:

Stewart v Sutherland Shire Council [2022] NSWLEC 1595

Category:

Principal judgment

Parties:

Adam Nelson (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Harker (Applicant)
J Amy (Solicitor) (Council)

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

File Number(s):

2023/462721

Publication restriction:

No

Judgment

1. COMMISSIONER: Nicholson Parade, in Cronulla, runs generally parallel to the foreshore of the Port Hacking River. This appeal concerns a development application for the construction of a dual occupancy at 123 Nicholson Parade. The development application was lodged on 19 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 4 July 2024 and continued on 18 and 22 July 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final signed agreement was submitted on 22 July 2024. The agreement followed the grant of leave on 18 July 2024 torely on amended documents pursuant to orders sought in a Notice of Motion filed on 26 June 2024, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38…