Project Flow Pty Ltd v Sutherland Shire Council
[2023] NSWLEC 1742
•08 December 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Project Flow Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1742 Hearing dates: Conciliation conference held on 01 December 2023 Date of orders: 08 December 2023 Decision date: 08 December 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA22/0798, which seeks the demolition of existing structures, and the construction of multi-dwelling housing for 6 dwellings over basement parking, swimming pools and associated civil works on Lots 35 and 36 Deposited Plan 11648, also known as 15-17 Kirkwood Road, Cronulla, is determined by the grant of consent, subject to the conditions in Annexure A.
(3) The applicant must pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $21,000, within 30 days of the date of these orders.
Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Sutherland Shire Local Environmental Plan 2015, cl 2.3
Texts Cited: Sutherland Shire Development Control Plan 2015
Category: Principal judgment Parties: Project Flow Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel:
Solicitors:
G Hugo (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Mckees Legal Solutions (Applicant)
Messenger Cole Solicitors (Respondent)
File Number(s): 2023/76758 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA22/0798 (the DA) by the Sutherland Shire Council (the Council), which as amended, seeks demolition of existing structures, and the construction of multi-dwelling housing for six dwellings over basement parking, swimming pools and associated civil works on Lots 35 and 36 Deposited Plan (DP) 11648, also known as 15-17 Kirkwood Road, Cronulla (the site).
Background
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The DA was lodged with Council on 4 August 2022.
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The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).
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Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held before me as Duty Commissioner.
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Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA22/0798, with conditions.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA22/0798, subject to conditions in Annexure A.
Jurisdictional prerequisites
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Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically addressed:
Sutherland Shire Local Environmental Plan 2015 (SSLEP):
Pursuant to cl 2.3 of the SSLEP, the proposed residential development is situated over land zoned R3 Medium Density Residential. The proposed development as described to the Court is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the SSLEP.
The site has been mapped as being affected by flooding, pursuant to cl 5.21 of the SSELP. The Council has assessed the flood impact related to the site, as described in a Flood Information Report, prepared by Council, dated 27 May 2022. The amended DA has considered and addresses flooding relating to the site.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):
Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is satisfied that the Council has appropriately considered that the site is suitable for proposed use prior to the grant of consent, and which together with the agreed conditions of consent that address any unexpected finds, satisfy the relevant requirements of s 4.6.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:
A BASIX Certificate (1408444M) issued on 19 July 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.
Sutherland Shire Development Control Plan 2015 (SSDCP):
The original DA was publicly notified and renotified in accordance with the SSDCP, with 25 and one submissions received, respectively. The relevant requirements of the SSDCP have been assessed in Council’s merit assessment, and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.
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It is noted that works are proposed on the site and rely on an easement (described in conditions 1, 5 and 17) for stormwater management on 16 Elouera Road, Cronulla (also known as Lot 20 DP 11648). Pursuant to s 23 of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowners.
Grant of consent
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Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.
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The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.
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I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA22/0798 can be granted consent.
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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.
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The Court notes that:
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 DA22/0798, as follows:
| Plan number | Reference | Prepared by | Date |
| DA000(G) | Cover Page (Site Location, Site Locality) | JE Architects | 8.8.23 |
| DA003(G) | Site Plan Analysis | JE Architects | 8.8.23 |
| DA004(G) | Demolition Plan | JE Architects | 8.8.23 |
| DA101(G) | Basement 01 | JE Architects | 8.8.23 |
| DA102(G | Ground Floor Plan | JE Architects | 8.8.23 |
| DA103(G) | Level 01 | JE Architects | 8.8.23 |
| DA104(G) | Level 02 | JE Architects | 8.8.23 |
| DA105(G) | Roof Plan | JE Architects | 8.8.23 |
| DA201(G) | North/South Elevation (including Materials Schedule) | JE Architects | 8.8.23 |
| DA202(G) | East Elevation (including Materials Schedule) | JE Architects | 8.8.23 |
| DA203(G) | West Elevation (including Materials Schedule) | JE Architects | 8.8.23 |
| DA204(G) | Streetscape Elevation | JE Architects | 8.8.23 |
| DA301(G) | AA/BB/Ramp | JE Architects | 8.8.23 |
| DA302(G) | Sections to Rear Boundary | JE Architects | 8.8.23 |
| DA401(G) | Privacy Diagram | JE Architects | 8.8.23 |
| DA412(G) | Fence Detail | JE Architects | 8.8.23 |
| DA501(G) | Finishes Schedule | JE Architects | 8.8.23 |
| LS01(M) | Landscape Plan - Ground Floor | Melissa Wilson Landscape Architects | 7.8.23 |
| LS02(M) | Landscape Plan - Level 1 + Level 2 | Melissa Wilson Landscape Architects | 7.8.23 |
| S101(01) | Specifications Sheet | Deboke Engineering Consultants | 14.7.23 |
| S200(01) | Easement Plan | Deboke Engineering Consultants | 14.7.23 |
| S201(01) | Basement Plan | Deboke Engineering Consultants | 14.7.23 |
| S202(01) | Ground Floor Plan | Deboke Engineering Consultants | 14.7.23 |
| S203(04) | First Floor Plan | Deboke Engineering Consultants | 30.2.23 |
| S204(04) | Second Floor Plan | Deboke Engineering Consultants | 30.2.23 |
| S205(04) | Roof Plan | Deboke Engineering Consultants | 30.2.23 |
| S300(01) | Details Sheet - Sheet 1 of 3 | Deboke Engineering Consultants | 14.7.23 |
| S301(01) | Details Sheet - Sheet 2 of 3 | Deboke Engineering Consultants | 14.7.23 |
| S302(01) | Details Sheet - Sheet 3 of 3 | Deboke Engineering Consultants | 14.7.23 |
| S400(01) | Erosion and Sedimentation Control Plan | Deboke Engineering Consultants | 14.7.23 |
| BASIX Certificate 1408444M | Paul & David Consulting | 19 July 2023 |
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The Applicant has filed the amendments to the Development Application DA22/0798 with the Court on 23 November 2023 and 1 December 2023.
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The Court orders that:
The appeal is upheld.
Development Application DA22/0798, which seeks the demolition of existing structures, and the construction of multi-dwelling housing for 6 dwellings over basement parking, swimming pools and associated civil works on Lots 35 and 36 Deposited Plan 11648, also known as 15-17 Kirkwood Road, Cronulla, is determined by the grant of consent, subject to the conditions in Annexure A.
The applicant must pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $21,000, within 30 days of the date of these orders.
Sarah Bish
Commissioner of the Court
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Annexure A
Decision last updated: 08 December 2023
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