Sjarif v Sutherland Shire Council

[2022] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sjarif v Sutherland Shire Council [2022] NSWLEC 1380

Hearing dates:

Conciliation conference on 23 May 2022, 14 and 30 June 2022

Date of orders:

18 July 2022

Decision date:

18 July 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders:

(1) The Applicant is granted leave to amend Development Application No.

DA20/1132 and rely upon the amended plans and documents referred to at

Condition 1 to Annexure ‘A’.

(2) The applicant is to pay the respondent’s section 8.15(3) costs as agreed or as

assessed.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA20/1132 for the demolition

of existing structures and the construction of a shop top housing development containing 1 retail premises at ground floor, 17 units above and 2 levels of basement car parking, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – retail use – shop top housing – amended plans – 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
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Sutherland Shire Local Environmental Plan 2010, cl 6.2, 6.4

Category:

Principal judgment

Parties:

Ridwan Sjarif (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
V Conomos (Applicant)
J Amy (Respondent)

Solicitors:
Conomos Legal (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/25077

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ridwan Sjarif (the Applicant) against the refusal of Development Application No. DA20/1132 by Sutherland Shire Council (the Respondent) on 3 August 2021.

2. The development application sought development consent for the demolition of existing structures and the construction of an eight storey shop top housing development including one ground floor retail premises, 17 residential apartments (16 x 2 bedroom and 1 x 1 bedroom apartment) and 2 levels of basement car parking. The proposed development is to be undertaken on land legally described as Lot 11 DP 20416, known as 52 Kiora Road, Miranda.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 23 May 2022 and then again on 14 and 30 June 2022.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to agreed outcomes being provided and agreed conditions.

5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The applicant lodged the amended application on the NSW Planning portal on 20 June 2022 and these amendments were accepted by Council.

6. The amended application included, but is not limited to, the following relevant amendments:

1. Various refinements to the parking and loading arrangements.

2. The provision of additional screening around the development.

3. Various refinements to the internal apartment designs.

4. Balconies further recessed to minimize overlooking onto neighbouring properties.

5. Changes to roof top open space.

6. Changes to window sill heights.

7. Deletion of various vertical timber battens.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. 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. In reaching that state of satisfaction, I note the following:

1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned B3 – Commercial Core wherein commercial premises are permitted with development consent. The proposal, being shop top housing above a retail premises, meets the definition of commercial premises in the SSLEP 2015. In determining the development application, I have had regard to the objectives of the zone.

2. The proposed development does not contravene a development standard in SSLEP 2015, nor in any other applicable environmental planning instrument.

3. The requirements of cl 6.2 of SSLEP 2015 in respect to earthworks, that require the consent authority to have considered the matters in subclause (3), have been met. The various works required are outlined by the applicant, and where necessary, appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

4. The requirements of cl 6.4 of SSLEP 2015, in respect to stormwater management, that require the consent authority to have considered various matters have been met. The various works required are outlined by the applicant, and where necessary, appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

5. The development application was placed on exhibition on 21 January 2021 with the last date for submissions being 15 February 2021. The parties are satisfied that the matters raised by the submitters have been adequately considered, and where appropriate, addressed in the amended application the subject to this agreement and the conditions in the Development Consent forming Annexure A.

6. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

7. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The respondent has considered tree removal as part of the application and endorsed various works as part of the assessment of the application. As a result of these deliberations, I am also satisfied that the Biodiversity and Conservation SEPP requirements have been met and that appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A.

8. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The applicant provided a history of use of the site indicating that there is no reason to suspect that the site has been contaminated from previous land uses. The parties agree that the Site is suitable for the proposed development and I am satisfied with these conclusions based on the material provided.

10. 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’ agreement.

11. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

12. The Court Orders:

1. The Applicant is granted leave to amend Development Application No. DA20/1132 and rely upon the amended plans and documents referred to at Condition 1 to Annexure ‘A’.

2. The applicant is to pay the respondent’s section 8.15(3) costs as agreed or as assessed.

3. The appeal is upheld.

4. Consent is granted to Development Application DA20/1132 for the demolition of existing structures and the construction of a shop top housing development containing 1 retail premises at ground floor, 17 units above and 2 levels of basement car parking, subject to the conditions set out in Annexure ‘A’.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (311554, pdf)

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Decision last updated: 19 July 2022