Sancorp Property Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sancorp Property Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1184

Hearing dates:

Conciliation Conference on 4 March 2022

Date of orders:

6 April 2022

Decision date:

06 April 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA-21/1052 for the demolition of the existing dwelling house, outbuildings and swimming pool, tree removal and construction of 1 and 2 storey multi-dwelling housing comprising 9 dwellings including 2 affordable housing dwellings, basement carparking for 14 cars, and landscaping is determined by the grant of consent, subject to the conditions in Annexure A.

(3) The applicant shall pay to the respondent the sum of $7,000 pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 by 15 April 2022.

Catchwords:

DEVELOPMENT APPLICATION – residential multi-dwelling construction – 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 2000, cll 49, 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004

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

Sutherland Shire Local Environmental Plan 2015

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Sancorp Property Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/349418

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal of Development Application (DA) 21/1052 by Sutherland Shire Council (hereafter the Council) which, as amended, seeks demolition of existing structures with tree removal, and construction of a multi-dwelling development of nine (9) dwellings, basement carparking, and associated drainage/earth/civil works on Lot 4 DP 5469, also known as 223 Kingsway, Caringbah (together the site).

Background

2. The DA was submitted to Council on 8 October 2021, and after notification, made consistent with the relevant planning controls, no submissions were received during the notification period.

3. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), with an onsite view at the request of the parties, and then was held by Microsoft Teams.

5. The Council agreed for the applicant to amend the plans and documents that support and amend the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended DA and agreed conditions of consent, the parties reached 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 decision of the parties is to uphold the appeal and grant consent to DA 21/1052, with conditions.

7. Pursuant to s 34(3) of the Court 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 exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 21/1052, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners for works proposed by the DA.

9. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining the development application. The following jurisdictional requirements have been speacifically considered and are satisfied:

1. Sutherland Shire Local Environmental Plan 2015 (SSLEP):

1. Pursuant to the SSLEP, the proposed residential development is situated over land zoned R2 Low Density Residential. The proposed development as described to the Court is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SSLEP.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH):

1. The relevant provisions of the SEPP ARH are considered, pursuant to cl 10(1)(b) of the SEPP ARH. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the SEPP ARH.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. Pursuant to cl 4.6 of the SEPP Resilience, the site must be deemed suitable or can be made suitable for the proposed use, prior to grant of consent. Based on the supporting documents to the amended DA, the Court is advised that the site has historically been used for residential purposes, and together with the agreed conditions of consent, address the relevant requirements of cl 4.6 of SEPP Resilience.

4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:

1. A BASIX Certificate (1229469M_02) relevant to the proposed development, as amended, is identified in the conditions of consent and supports the amended DA.

5. Sutherland Shire Development Control Plan 2015 (SSDCP):

1. The relevant requirements of the SSDCP are generally complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The original proposed development was publicly notified in accordance with the SSDCP, and no submissions were received.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed development.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 21/1052 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

13. 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

14. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application 21/1052.

2. The amended development application documents were lodged on the NSW Planning Portal on 29 March 2022.

3. The amended development application was filed with the Court on 29 March 2022.

15. The Court orders that:

1. The appeal is upheld.

2. Development application DA-21/1052 for the demolition of the existing dwelling house, outbuildings and swimming pool, tree removal and construction of 1 and 2 storey multi-dwelling housing comprising 9 dwellings including 2 affordable housing dwellings, basement carparking for 14 cars, and landscaping is determined by the grant of consent, subject to the conditions in Annexure A.

3. The applicant shall pay to the respondent the sum of $7,000 pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 by 15 April 2022.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (401204, pdf)

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Decision last updated: 06 April 2022