Sidey v Sutherland Shire Council

[2021] NSWLEC 1078

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sidey v Sutherland Shire Council [2021] NSWLEC 1078

Hearing dates:

Conciliation conference held on 22 January 2021

Date of orders:

19 February 2021

Decision date:

19 February 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended architectural plans and landscape plans set out in Condition 1 of the Conditions of Consent at Annexure A.

(2) The applicant shall 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 $10,000 within 28 days from the date of these Orders.

(3)   The appeal is upheld.

(4)   Development consent is granted to Development Application No. DA19/0710 for the demolition of existing structures, the Torrens title subdivision of one lot into three lots, construction of dual occupancies on two of the resulting lots and strata subdivision of each dual occupancy on Lot 104 in Deposited Plan 235861, at 80-82 Fernleigh Road, Caringbah South, 2229, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Coastal Management Act 2016

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Coastal Management) 2018

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Lachlan Douglas Sidey (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Johnsons Law Group (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/349067

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 19/0710 for the Torrens title subdivision of the site into three lots and construction of dual occupancies on two of the resulting lots and strata subdivision of each dual occupancy on Lot 104 in Deposited Plan 235861 (the proposal) at 80-82 Fernleigh Road, Caringbah South (the site) by Sutherland Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 January 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

Planning framework

6. The site is within the coastal zone, pursuant to s 5 of the Coastal Management Act 2016 and cl 6 of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP). Clauses 13 - 16 of SEPP (Coastal Management) are in the following terms:

13 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

14 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

15 Development in coastal zone generally—development not to increase risk of coastal hazards

Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.

16 Development in coastal zone generally—coastal management programs to be considered

Development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.

7. I have considered the Council’s submission on jurisdictional matters (Attachment 1) and supporting documents and on the basis of the reasoning and conclusions of those documents and in the absence of any contrary evidence, I am satisfied that the proposal has been designed, sited and will be managed to avoid any significant adverse environmental impact.

8. The site is zoned E4 Environmental Living pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are:

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

9. Clause 4.1A(2) of LEP 2015 is in the following terms:

(2) Development consent must not be granted for the subdivision of land in Zone E3 Environmental Management or Zone E4 Environmental Living unless each lot resulting from the subdivision will have—

(a) a minimum width of 18 metres at the building line, and

(b) a minimum depth of 27 metres.

10. Clause 4.1B(2)(a) of LEP 2015 is in the following terms:

(2) Development consent must not be granted for the strata subdivision of a dual occupancy on a lot of land (an original lot) in Zone E3 Environmental Management or Zone E4 Environmental Living unless—

(a) the size of the original lot is not less than the minimum lot size shown on the Lot Size Map in relation to the land …

11. The proposal complies with cll 4.1A(2) and 4.1B(2)(a) of LEP 2012.

12. The height of buildings development standard for the site is 8.5m pursuant to cl 4.3(2) of LEP 2015. Subclause (2B) requires the maximum height for a dual occupancy on an internal lot in the E4 zone to be 5.4 metres. The proposal complies with the height of buildings development standard.

13. The floor space ratio (FSR) development standard for the site is 0.5:1 pursuant to cl 4.5B(2) of LEP 2015. The proposal complies with the FSR development standard.

14. Clause 6.14 of LEP 2015 applies to the site at cl 6.14(2)(k). The minimum percentage of the site area on land to which this clause applies is 40%, pursuant to cl 6.14(3). The proposal complies with the landscaped area development standard.

Orders

15. The Court orders that:

1. Leave is granted to the applicant to rely on the amended architectural plans and landscape plans set out in Condition 1 of the Conditions of Consent at Annexure A.

2. The applicant shall 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 $10,000 within 28 days from the date of these Orders.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA19/0710 for the demolition of existing structures, the Torrens title subdivision of one lot into three lots, construction of dual occupancies on two of the resulting lots and strata subdivision of each dual occupancy on Lot 104 in Deposited Plan 235861, at 80-82 Fernleigh Road, Caringbah South, 2229, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (363683, pdf)

(Attachment 1) (166740, pdf)

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Decision last updated: 23 February 2021