Project Flow Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1167

Land and Environment Court

New South Wales

Medium Neutral Citation:

Project Flow Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1167

Hearing dates:

Conciliation conference 5 February 2024

Date of orders:

10 April 2024

Decision date:

10 April 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA23/0289, for demolition of existing structures and construction of a multi-dwelling housing development of nine (9) townhouses including basement, swimming pools, carparking and a nine (9) lot strata subdivision on land legally comprising Lots 2, 3 and 1 in DP601639, also known as 35, 35A and 37 Langer Avenue, Caringbah South, subject to the conditions of consent at Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans, in accordance with s 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or as assessed, payable within 28 days of any agreement or assessment.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Sutherland Shire Local Environmental Plan 2015, cl 6.4

Category:

Principal judgment

Parties:

Project Flow Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/224537

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 23/0289 (DA) by Sutherland Shire Council (Council).

2. The DA seeks consent for the demolition of existing dwellings and associated structures and the construction of a multi dwelling housing development comprising nine townhouses and associated works, along with strata subdivision, at 35, 35A and 37 Langer Avenue Caringbah South, legally identified as Lots 1, 2 and 3 in DP 601639 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 5 February 2024. After more time was given, the parties came to an 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 consent to the DA, as amended in the course of conciliation, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

5. There are certain statutory pre-requisites which require attention before this function can be exercised by the Court. I attend to the relevant matters below assisted by the advice in the parties’ agreed jurisdictional note received by the Court on 28 March 2024.

Sutherland ShireLocal Environmental Plan 2015

6. The site is zoned R2 Low Density Residential under the applicable Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development (demolition, multi dwelling housing development, and lot consolidation and strata subdivision) is permissible with consent. I have had regard to the zone objectives and note that the parties believe the proposal, as amended, is compatible with these objectives.

7. I note and accept the advice of the parties that the proposal does not breach any development standards under SSLEP.

8. Clause 6.4 is concerned with stormwater management. On the basis of the advice of the parties and with a view to the stormwater management schema as proposed with the agreed amendments, I am satisfied with respect to the matters at subcl 6.4(3).

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

9. The parties have advised me of the objecting submissions in relation to the proposal (indeed I heard from a number of objectors during the site inspection). The parties advise they have given consideration to them in coming to the final agreed amended plans.

Conclusion

10. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notations

12. With respect to the amendments of the DA, 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 the development application No DA 23/0289 in accordance with the amended plans and documents listed below:

Architectural Drawings by Skyline Architects

Drawing/Plan No.	Issue	Plan Title	Dated
DA-001	E	Site Plan	23/02/2024
DA-101	E	Basement Plan	23/02/2024
DA-102	E	Ground Floor Plan	23/02/2024
DA-103	E	Level 01	23/02/2024
DA-104	E	Roof Plan	23/02/2024
DA-201	E	North/South Elevations	23/02/2024
DA-202	E	East/West Elevations	23/02/2024
DA-203	E	Internal Elevations East/West	23/02/2024
DA-204	E	Internal Elevations North/South	23/02/2024
DA-301	E	Section AA/BB	23/02/2024
DA-302	E	Ramp Section	23/02/2024
DA-303	E	Privacy/ CC Section	23/02/2024
DA-401	E	Pre/Post Adaptable Layouts	23/02/2024
DA- 402	E	GFA+ Landscape Calculations Diagrams	23/02/2024
DA-403	E	Shadow Diagrams – Winter Solstice	23/02/2024
DA-404	E	Shadow Diagrams – Summer Solstice	23/02/2024
DA-405	E	Shadow Diagrams – MAR & SEP Equinox	23/02/2024
DA-406	E	Views from the Sun 9am - 12pm	23/02/2024
DA-407	E	Views from the sun 1pm - 3pm	23/02/2024
DA-408	E	Building height plane	23/02/2024
DA- 501	E	Finishes schedule	23/02/2024
DA- 502	E	3D views	23/02/2024

Landscape Drawings

Drawing/Plan No.	Issue	Plan Title	Dated
L/00	C	Cover Sheet	06/03/2024
L/01	C	Proposed Ground Floor Site Plan	06/03/2024
L/02	C	Proposed Ground Floor Landscape & Fencing Plan	06/03/2024
L/03	C	Proposed Ground Floor Tree Planting Plan	06/03/2024
L/04	C	Proposed Ground Floor Shrub and Ground Cover Plan	06/03/2024
L/05	C	Proposed first Floor Landscape Plan	06/03/2024
L/06	C	Landscape Details	06/03/2024
L/07	C	Landscape Specifications	06/03/2024

Stormwater Drainage Plans prepared by Deboke engineering consultants

Drawing/Plan No.	Issue	Plan Title	Dated
S101	02	Specifications Sheet	08/02/2024
S200	02	Basement Plan 1 of 2	08/02/2024
S201	02	Basement Plan 2 of 2	08/02/2024
S202	02	Ground Floor Plan	08/02/2024
S203	02	First Floor Plan	08/02/2024
S204	02	Roof Plan	08/02/2024
S300	02	Details Sheet 1 of 4	08/02/2024
S301	02	Details Sheet 2 of 4	08/02/2024
S302	02	Details Sheet 3 of 4	08/02/2024
S303	02	Details Sheet 4 of 4	08/02/2024
S400	02	Erosion and Sediment Control Plan	08/02/2024

2. The Applicant has filed the documents referred to above with the Court on 22 March 2024.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA23/0289, for demolition of existing structures and construction of a multi-dwelling housing development of nine (9) townhouses including basement, swimming pools, carparking and a nine (9) lot strata subdivision on land legally comprising Lots 2, 3 and 1 in DP601639, also known as 35, 35A and 37 Langer Avenue, Caringbah South, subject to the conditions of consent at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans, in accordance with s 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or as assessed, payable within 28 days of any agreement or assessment.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 10 April 2024