Parseh Cronulla Pty Ltd v Sutherland Shire Council - [2021] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation: Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248
Hearing dates: Conciliation conference on 13 and 27 April 2021
Date of orders: 14 May 2021
Decision date: 14 May 2021
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1)   The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the amended conditions at annexure “A”.
(2)   The appeal is upheld.
(3)   Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street, Cronulla is approved.
(4)   Development consent DA18/0504 is modified in accordance with modification application MA20/0237 and is subject to the amended conditions at annexure “A”.

Catchwords:
DEVELOPMENT APPEAL – modification of consent – substantially the same – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9
Land and Environment Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development
State Environmental Planning Policy No. 55 – Remediation of Land
Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, and 6.17
Environmental Planning and Assessment Regulation 2000, ss 115(3), 115(6)

Cases Cited:
Arrage v Inner West Council [2019] NSWLEC 85
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:
Australian Design Guide, NSW Department of Planning and Environment, July 2015
Sutherland Shire Council Environmental Specification – Waste Collection for New Multi-Dwelling Housing and Residential Flat Buildings
Sutherland Shire Development Control Plan 2015
Sutherland Shire Section 94 Development Contribution Plan 2016

Category: Principal judgment
Parties: Parseh Cronulla Pty Ltd (First Applicant)
Parallel Pty Ltd (Second Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
J Reid (Applicants)
M Staunton (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicants)
HWL Ebsworth (Respondent)

File Number(s): 2020/294311
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the deemed refusal of an application to modify a development consent namely modification application No. MA20/0237 to modify development consent No. DA18/0504 which granted approval for the demolition of 2 apartment buildings and the construction of a 5 storey residential flat building by increasing the gross floor area of the building, changes to the carparking, internal layouts and landscaping (the Proposed Modified Development) at Lots 1 – 5 SP 11909 and Lots 1 – 6 SP 2948 located at 3-5 Parramatta Street Cronulla (the Site).

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWLEC 1248
Decision Date: 14 May 2021

CaseChat Overview and Summary

Parseh Cronulla Pty Ltd sought to amend and add to a previously approved residential flat building, which application was initially refused by the Sutherland Shire Council. The applicant appealed to the Land and Environment Court of New South Wales, which heard the matter and was tasked with determining whether the modifications proposed by the applicant should be approved.

The legal issues before the court involved the interpretation and application of the relevant planning laws and policies, particularly concerning the suitability and impact of the proposed alterations and additions. The court had to assess whether the modifications were consistent with the approved development consent and whether they complied with the relevant planning instruments, including the Sutherland Local Environmental Plan 2016. Additionally, the court examined the applicant's justification for the changes and whether they aligned with the broader objectives of the planning framework.

The court found that the applicant's proposed modifications were consistent with the approved development consent and aligned with the planning objectives. The modifications, which included changes to the layout and structure of the building, were deemed necessary to address unforeseen circumstances and improve the functionality of the premises. The court also concluded that the modifications would not significantly alter the character or appearance of the building, nor would they adversely affect the surrounding environment. Consequently, the court granted the appeal and approved the modification application. The development consent was modified to reflect the changes, subject to certain conditions designed to mitigate any potential adverse impacts.

Orders

Orders of the court

The Court orders:

(1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the amended conditions at annexure “A”.

(2) The appeal is upheld.

(3) Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street, Cronulla is approved.

(4) Development consent DA18/0504 is modified in accordance with modification application MA20/0237 and is subject to the amended conditions at annexure “A”.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248
Hearing dates:	Conciliation conference on 13 and 27 April 2021
Date of orders:	14 May 2021
Decision date:	14 May 2021
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the amended conditions at annexure “A”. (2) The appeal is upheld. (3) Modification Application MA20/0237 for alterations and additions to the approved residential flat building at 3-5 Parramatta Street, Cronulla is approved. (4) Development consent DA18/0504 is modified in accordance with modification application MA20/0237 and is subject to the amended conditions at annexure “A”.
Catchwords:	DEVELOPMENT APPEAL – modification of consent – substantially the same – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.55, 8.9 Land and Environment Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development State Environmental Planning Policy No. 55 – Remediation of Land Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, and 6.17 Environmental Planning and Assessment Regulation 2000, ss 115(3), 115(6)
Cases Cited:	Arrage v Inner West Council [2019] NSWLEC 85 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Australian Design Guide, NSW Department of Planning and Environment, July 2015 Sutherland Shire Council Environmental Specification – Waste Collection for New Multi-Dwelling Housing and Residential Flat Buildings Sutherland Shire Development Control Plan 2015 Sutherland Shire Section 94 Development Contribution Plan 2016
Category:	Principal judgment
Parties:	Parseh Cronulla Pty Ltd (First Applicant) Parallel Pty Ltd (Second Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: J Reid (Applicants) M Staunton (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicants) HWL Ebsworth (Respondent)
File Number(s):	2020/294311
Publication restriction:	No