Penwarden v Sutherland Shire Council

[2023] NSWLEC 1175

Land and Environment Court

New South Wales

Medium Neutral Citation:

Penwarden v Sutherland Shire Council [2023] NSWLEC 1175

Hearing dates:

Conciliation conference 31 March 2023

Date of orders:

17 April 2023

Decision date:

17 April 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA22/0090 for the construction of a new roof terrace and associated works to an existing dwelling at 2 Gardenia Street, Cronulla, NSW subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – development application seeks consent for a new roof terrace on an existing dwelling – amended plans – conciliation conference -amended plans – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 6.1, 6.4, 6.14, 6.16. 6.17

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Adele Gay Penwarden (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
L Simms (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/43551

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) by Adele Gay Penwarden (the Applicant) against the deemed refusal of development application DA22/0090 by Sutherland Shire Council (Respondent). The development application seeks consent for the construction of a new roof terrace and associated works to an existing dwelling at 2 Gardenia Street, Cronulla (Lot 17 DP 6516).

2. A conciliation conference was held between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 31 March 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached an agreement based on amended plans and documents that they considered resolved the contentions before the Court. That agreement is for the grant of the application, as amended, subject to conditions.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The Applicant, Adele Gay Penwarden, is the owner of the Site and therefore, was able to lodge the DA pursuant to cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000).

2. The development application was notified to adjoining properties between 11 March and 4 April 2022 in accordance with the requirements of the Sutherland Shire Development Control Plan 2015 (DCP 2015), the EP&A Act, and the EPA Regulation 2000. No submissions were received.

3. Pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015) the land is zoned R2 Low Density Residential Development. The development application proposes alterations and additions to a dwelling, development for the purposes of a dwelling house is permissible with consent.

4. As required by cl 2.3(2) of LEP 2015, in determining the development application I have given consideration to the zone objectives.

5. The proposed development complies with the principal development standards for height and floor space ratio in LEP 2015.

6. Clause 6.1(3) (Acid sulfate soils) of LEP 2015 provides that development consent must not be granted for the carrying out of works (described in cl 6.1(2)) unless the consent authority is satisfied that any disturbance of acid sulfate soils resulting from the works will be managed so as to minimise adverse impacts. Given the nature of the proposed works being a roof top terrace on an existing dwelling, I accept the agreement of the parties that that there is unlikely to be any disturbance of acid sulfate soils, or any impacts; and that the clause is satisfied.

7. Clause 6.4 (Stormwater management) of LEP 2015 provides that development consent must not be granted unless the consent authority is satisfied about the matters in cl 6.4(3). The proposed terrace is within the roof top of the existing dwelling and will drain via the existing stormwater system, I am satisfied that these matters have been adequately addressed.

8. Clause 6.14 (Landscaped areas in certain residential, business, industrial and environment protection zones’) of LEP 2015 requires a minimum of 35% of the site area to consist of landscaping. The subject site has a pre-existing non-compliance. Clause 6.14(4A) of LEP 2015 permits the grant of consent despite the development not meeting the minimum landscaped area where the development will not result in a reduction in the percentage and is protected and enhanced, tree canopy is maintained, and the development does not have an adverse effect on the landscape quality of the site. I accept the agreement of the parties that I can be satisfied that the requirements of cl 6.14(4A) of LEP 2015 are met.

9. Clause 6.16 (Urban design – general) provides that in deciding whether to grant development consent for any development, the consent authority must consider the matters in 6.16(1). Further, cl 6.17 (Urban design – residential accommodation) provides that in deciding whether to grant development consent for the purposes of residential accommodation, the consent authority must consider the matters in cl 6.17. In determining the development, I have given consideration to the matters listed at cll 6.16 and 6.17. I am satisfied none of the listed matters warrant the refusal of the development.

10. In determining the development application, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. I accept the agreed submission of the parties that the site has been continually used for residential purposes since the 1970’s; that it is considered highly unlikely that the site is contaminated and that there is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

4. 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.

5. 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.

6. The Court notes that Sutherland Shire Council, as the relevant consent authority, has agreed pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA22/0090 in accordance with the plans specified in condition 1 of Annexure A.

7. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA22/0090 for the construction of a new roof terrace and associated works to an existing dwelling at 2 Gardenia Street, Cronulla, NSW subject to the conditions of consent at Annexure A.

D Dickson

Commissioner of the Court

Annexure A (197540, pdf)

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Decision last updated: 17 April 2023