Smarak No2 Pty Ltd v Sutherland Shire Council

Case •

[2025] NSWLEC 1126

•

06 March 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: SMARAK No2 Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1126
Hearing dates: Conciliation conference 26 February 2025
Date of orders: 06 March 2025
Decision date: 06 March 2025
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs thrown away as a result of reliance on the amended documents and plans in the agreed amount of $15,000 payable within 28 days.

(2) The appeal is upheld.

(3) Development Application DA23/0818 for demolition of the existing structures, and construction of a seven-storey shop top housing development, comprising of 13 dwellings and 2 retail premises, 2 levels of parking as well as associated road and public domain works at 66-68 Croydon Street, Cronulla NSW is determined by the grant of consent subject to conditions contained in Annexure ‘A’

Catchwords:

DEVELOPMENT APPLICATION: Residential apartment development – residential flat building – conciliation conference – agreement between parties - orders

Legislation Cited:

Architects Act 1921

Architects Act 2003

Environmental Planning and Assessment 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Strata Schemes (Freehold Development) Act 1973

Strata Schemes Development Act 2015, s 4, Pt 8

Environmental Planning and Assessment Regulation 2021, ss 29, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6

State Environmental Planning Policy (Housing) 2021, Sch 9, Ch 2, Pt 3, ss 147, 148

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.1. 6.2, 6.14, 6.17

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Sutherland Shire Development Control Plan 2015

Category:Principal judgment
Parties: SMARAK No2 Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation:

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

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2024/241796
Publication restriction: Nil

Judgment

  1. COMMISSIONER: This Class 1 appeal is in respect of development application DA23/0818, lodged by the Applicant in these proceedings, Smarak No 2 Pty Ltd (Smarak), seeking consent for the demolition of the existing structures, and construction of a seven-storey shop top housing development, comprising of 13 dwellings and 2 retail premises, 2 levels of parking as well as associated road and public domain works at 66-68 Croydon Street, Cronulla NSW.

  2. The development application was lodged with Sutherland Shire Council (the Council) on 12 January 2024, and exhibited and notified from 18 January 2024. As the development application was not otherwise determined, Smarak appealed the deemed refusal under s 8.7 of the Environmental Planning and Assessment 1979 (EPA Act).

  3. On 26 February 2025, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

  4. Prior to the conciliation conference, the parties reached agreement on the matters in contention and a signed agreement was submitted to the Court on 25 February 2025, in accordance with s 34(10) of the LEC Act.

  5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involves the Court upholding the appeal and granting conditional development consent to the development application.

  6. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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

  8. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

  9. The site is located within an area identified as E2 Commercial Centre, according to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), in which shop top housing development is permitted with consent, where consistent with the following objectives of the E2 zone:

•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

The height standard is exceeded

  1. A height standard of 20m applies to the site, according to the relevant map at cl 4.3(2) of the SSLEP. The proposed development exceeds this height and Smarak relies on a written request authored by DMPS in accordance with cl 4.6 of the SSLEP (the Height Request).

  2. The maximum height of the proposal is 3.3m above the height standard, measured to the lift overrun. The Height Request asserts the exceedance is due to a combination of the preference for floor-to-floor heights that exceed those set out in the Apartment Design Guide, and due to sloping topography on the site.

  3. The Height Request states that compliance with the height standard is unreasonable or unnecessary in the circumstances of the case because the proposal complies with the objectives of the height standard, notwithstanding the non-compliance.

  4. The relevant objectives of the height standard are as follows:

(a)  to ensure that the scale of buildings—

(i)  is compatible with adjoining development, and

(ii)  is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and

(iii)  complements any natural landscape setting of the buildings,

(b)  to allow reasonable daylight access to all buildings and the public domain,

(c)  to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,

(d)  to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,

…

(f)  to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.

  1. I am satisfied that Smarak has demonstrated compliance with the height standard is unreasonable or unnecessary for the reasons set out in the Height Request, summarised as follows:

  1. Firstly, the scale of the proposed development substantially complies with the relevant provisions of the Sutherland Shire Development Control Plan 2015 (SSDCP), including built form controls, and in the public domain improvements that are consistent with the desired future character of the Cronulla Centre.

  2. Secondly, sun eye diagrams demonstrate, reasonable daylight access to adjacent buildings and the public domain is maintained.

  3. Thirdly, the impact of the proposed development on adjoining buildings is minimised by its consistency with the footprint envisaged by the Council, depicted in Map 14 of the Cronulla Centre Potential Built Form Plan, and by the absence of impact in terms of view loss and overshadowing.

  4. Fourthly, the setback of the uppermost storey renders it virtually imperceptible form any point in the public domain and so minimises its visual impact.

  5. Fifthly, the proposal largely conforms to the transition sought by Map 14 of the Sutherland Shire Housing Strategy 2020, which depicts nil setbacks and a stepping to a 2-storey podium to the rear lane, and which appears identical to the figure at Chapter 19, Part B3 (p 12) of the SSDCP as is proposed.

  1. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard. Firstly, I accept that the topography of the site contributes to the exceedance, inasmuch as providing vehicular access from the rear lane at the higher level avoids access from Croydon Street which would inhibit the public domain improvements and activation sought by Council’s strategic planning objectives. Next, I also accept the setback of built form at the uppermost level is imperceptible from the public domain, and that no adverse environmental impacts arise as a consequence of the exceedance.

  2. For these reasons, I find no reason the Height Request should not be upheld.

Other jurisdictional pre requisites of the SSLEP

  1. The proposed development complies with the floor space ratio standard on the relevant map at cl 4.4(2) of the SSLEP of 2.5:1.

  2. The site is located on land mapped as ‘class 5’ on the relevant Acid Sulfate Soils Map at cl 6.1(2) of the SSLEP, and is within 100m of land classified Class 1 and Class 4. However, the development application does not propose excavation below 5m AHD, and so will not lower the water table below 1m AHD.

  3. On the basis of the following, I have considered the matters to be considered at cl 6.2(3) of the SSLEP and conclude that the earthworks proposed will not have a detrimental impact on the environmental functions, processes, uses of heritage of the subject site or surrounding land:

  1. Preliminary Geotechnical Investigation prepared by Australia Ground Services dated 27 November 2023

  2. Stormwater Plans prepared by SGC Engineering dated 20 January 2025

  1. For virtually identical reasons, I am also satisfied that the proposed development proposes the onsite detention and filtration of stormwater so as to avoid any adverse impacts arising from stormwater runoff, in accordance with cl 6.14 of the SSLEP.

  2. I am assisted in considering those provisions of the SSLEP that deal with urban design by a statement prepared by Mr Daniel McNamara of DMPS dated 28 February 2025 that satisfactorily addresses those aspects to be considered. In particular, I accept that the proposal can be said to strengthen, enhance or integrate into the existing character of the Cronulla centre, and contribute to the desired future character of the locality concerned, for reasons similar to those at [14(1)], and that the streetscape will be improved by the development, being one of those matters at s 6.17 of the SSLEP.

State Environmental Planning Policy (Housing) 2021

  1. Chapter 2 of State Environmental Planning Policy (Housing) 2021 deals with affordable housing, but does not apply to development that is subject to strata subdivision.

  2. The parties agree that the existing development on the site was a strata scheme at the commencement of the Strata Schemes Development Act 2015 (Strata Act), by virtue of the terms at s 4, Pt 8 of the Strata Act which deems a strata scheme in existence under the Strata Schemes (Freehold Development) Act 1973 (Strata Schemes Act) to be a strata scheme.

  3. The existing strata scheme on site was formed in 1979 under the Strata Schemes Act, applicable at the time. As such, the development on the site was a strata scheme “in existence” at the time in which the Strata Act took effect. Accordingly, Part 3 of the Housing SEPP does not apply.

  4. As the proposed development is residential apartment development, the Court is required by s 147 of the Housing SEPP to consider the quality of the design of the development, evaluated in accordance with the design principles at Sch 9.

  5. I am assisted in so doing by a statement dated 26 September 2024 and prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Phat Huynh (Arch Reg No. 10700) directed the design of the proposal, and sets out the means by which the design principles have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the Apartment Design Guide are addressed.

  6. I do, however, note that Mr Huynh’s statement relies on his designation as an architect under the Architects Act 1921, and the definition of a qualified designer is said to be derived from the Environmental Planning and Assessment Regulation 2000. Both these references are clear errors given both instruments have long since been repealed. That said, Mr Huynh’s designation as an architect is afforded by the Architects Act 2003, according to the register published by the Architects Registration Board, and publicly available at accessed 1 March 2025.

  7. The Council’s Design Review Panel has considered the proposal and provided advice on the design in writing, dated 4 April 2024.

  8. On the basis of the statement, I am satisfied the development as proposed meets the requirements set out in s 148 of the Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

  1. As the proposal is within the vicinity of a rail corridor, the proposed development has been referred to the relevant rail authority in accordance with s 2.99(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP), and a written response has been taken into consideration.

  2. On 9 February 2024, TfNSW provided general terms of approval that are incorporated into the agreed conditions of consent.

  3. Residential development in the vicinity of the rail corridor may be adversely affected by rail noise or vibration. A Rail Noise and Vibration Impact Assessment prepared by Rodney Stevens Acoustics dated 4 July 2023 concludes that that the proposed development will comply with the relevant controls under s 2.100(3) of the Transport SEPP because of the proposed construction materials and, and other acoustic recommendations that are incorporated into the conditions of consent. On this basis I am satisfied that that appropriate measures will be taken to ensure that the relevant noise levels are not exceeded.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. I have considered whether the land is contaminated in accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the investigations undertaken and conclusions contained in the Preliminary Site Investigation prepared by GCA Geotechnical Consultants Australia dated 29 July 2021 (PSI), and the Detailed Site Investigation prepared by AGS Australian Ground Sciences dated 25 November 2023 (DSI), I am satisfied the site is suitable for the purpose for which development is proposed to be carried out.

  2. I also note that agreed conditions of consent incorporate reference to PSI and DSI in terms.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an Arboricultural Impact Assessment prepared by Advanced Treescape Consulting dated 13 November 2024 that identifies four trees for removal and two street trees outside the site to be retained. I note s 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

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

  1. The application is accompanied by a BASIX certificate (Cert No. 1228048M_03 prepared by Taylor Smith Consulting and dated 18 February 2025).

  2. The original development application, when lodged, was also accompanied by a certificate dated 29 September 2023. As such, the application of State Environmental Planning Policy (Sustainable Buildings) 2022 is saved, and the BASIX certification is issued under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

Conclusion

  1. 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.

  2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

  3. The Court notes that:

  1. The Court notes that the Sutherland Shire Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the amendment of Development Application DA23/0818 to incorporate the documents listed below:

No.

Drawing No

Rev

Drawing Title

Prepared By

Date

Architectural Plans

1.

0001

E

Calculations

IDA Design Group

6 February 2025

0004

E

Demolition Plan

IDA Design Group

6 February 2025

0005

E

Construction Management Plan

IDA Design Group

6 February 2025

0006

E

Site Plan

IDA Design Group

6 February 2025

0007

E

Site Zones

IDA Design Group

6 February 2025

0008

E

GFA Diagrams

IDA Design Group

6 February 2025

0011

E

Croydon St. Streetscape

IDA Design Group

6 February 2025

1001

E

Lower Ground Plan

IDA Design Group

6 February 2025

1002

E

Ground Floor Plan

IDA Design Group

6 February 2025

1003

E

Level 1 Plan

IDA Design Group

6 February 2025

1004

E

Level 2 Plan

IDA Design Group

6 February 2025

1005

E

Level 3 Plan

IDA Design Group

6 February 2025

1006

E

Level 4 Plan

IDA Design Group

6 February 2025

1007

E

Level 5 Plan

IDA Design Group

6 February 2025

1008

E

Roof Plan

IDA Design Group

6 February 2025

2001

E

North and South Elevation

IDA Design Group

6 February 2025

2002

E

East and West Elevation

IDA Design Group

6 February 2025

2003

E

Streetscape Elevations

IDA Design Group

6 February 2025

3001

E

Sections

IDA Design Group

6 February 2025

3002

E

Sections

IDA Design Group

6 February 2025

4001

E

Window and Door Schedule

IDA Design Group

6 February 2025

4002

E

Adaption Details

IDA Design Group

6 February 2025

4003

E

Solar Diagrams

IDA Design Group

6 February 2025

4004

E

Cross Ventilation Diagrams

IDA Design Group

6 February 2025

4006

E

Height Plane – A

IDA Design Group

6 February 2025

4009

E

Suns Eye Diagrams – Sheet 1

IDA Design Group

6 February 2025

4010

E

Suns Eye Diagrams – Sheet 2

IDA Design Group

6 February 2025

4011

E

Suns Eye Diagrams – Sheet 3

IDA Design Group

6 February 2025

4012

E

Suns Eye Diagrams – Sheet 4

IDA Design Group

6 February 2025

4013

E

Suns Eye Diagrams – Sheet 5

IDA Design Group

6 February 2025

4015

E

Details – Crash Barrier & Louvre

IDA Design Group

6 February 2025

4016

E

View Analysis – Perspective 1

IDA Design Group

6 February 2025

4017

E

View Analysis – Perspective 2

IDA Design Group

6 February 2025

4018

E

View Analysis – Perspective 3

IDA Design Group

6 February 2025

4019

E

View Analysis – Perspective 4

IDA Design Group

6 February 2025

4020

E

View Analysis – Perspective 5

IDA Design Group

6 February 2025

4021

E

View Analysis – Perspective 6

IDA Design Group

6 February 2025

4022

E

View Analysis – Perspective 7

IDA Design Group

6 February 2025

Landscape Plans

2.

Cover Sheet

D

Cover Sheet

Site Design Studios

7 February 2025

L-01

D

Ground Floor Landscape Plan

Site Design Studios

7 February 2025

L-02

D

Level 1 Landscape Plan

Site Design Studios

7 February 2025

L-03

D

Level 2 Landscape Plan

Site Design Studios

7 February 2025

L-06

D

Level 5 Landscape Plan

Site Design Studios

7 February 2025

L-07

D

Landscape Area Calculation Plan – Ground Floor Level

Site Design Studios

7 February 2025

L-08

D

Landscape Area Calculation Plan – Level 1

Site Design Studios

7 February 2025

L-09

D

Landscape Area Calculation Plan – Level 2

Site Design Studios

7 February 2025

L-10

D

Landscape Area Calculation Plan – Level 5

Site Design Studios

7 February 2025

L-11

D

Section A

Site Design Studios

7 February 2025

L-12

D

Section B

Site Design Studios

7 February 2025

L-13

D

Section C

Site Design Studios

7 February 2025

L-14

D

Section D

Site Design Studios

7 February 2025

L-15

D

Planting Details

Site Design Studios

7 February 2025

Amended Public Domain Plans

3.

L-01

D

Public Domain Landscape Plan

Site Design Studios

7 February 2025

L-02

D

Planting Details

Site Design Studios

7 February 2025

Amended Civil Plans

4.

SW200

P02

Stormwater Concept Design Lower Ground Plan

S&G Consultants Pty Ltd

20 January 2025

SW201

P02

Stormwater Concept Design Ground Floor Plan

S&G Consultants Pty Ltd

20 January 2025

SW202

P02

Stormwater Concept Design Roof Plan

S&G Consultants Pty Ltd

20 January 2025

SW300

P02

Stormwater Concept Design Detail Sheet 1 of 2

S&G Consultants Pty Ltd

20 January 2025

SW301

P02

Stormwater Concept Design Detail Sheet 2 of 2

S&G Consultants Pty Ltd

20 January 2025

SW400

P02

Stormwater Concept Design Erosion and Sediment Plan

S&G Consultants Pty Ltd

20 January 2025

SW500

P02

Stormwater Concept Design Music Catchment Plan

S&G Consultants Pty Ltd

20 January 2025

Reports

No.

Report name

Prepared By

Dated

5.

Supplementary Site Survey

Geometra

21 January 2025

6.

Swept Path Analysis

Stanbury Traffic

30 January 2025

7.

Amended Operational Waste Management Plan (Rev F)

Elephants Foot Consulting Pty Ltd

28 November 2024

8.

Amended Aboricultural Impact Assessment

Advanced Treescape Consulting

13 November 2024

9.

Preliminary Geotechnical Investigation

Australian Ground Sciences

27 November 2023

10.

Amended Clause 4.6 (Building Height) Variation Request

DMPS

February 2025

11.

Design Verification Statement and ADG Compliance Table

IDA Design

February 2025

12.

BASIX Certificate No. 1228048M_03

Taylor Smith Consulting

18 February 2025

  1. The Applicant filed the amended plans and other documents with the Court on 25 February 2025.

Orders

  1. The Court orders that:

  1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay the Respondent’s costs thrown away as a result of reliance on the amended documents and plans in the agreed amount of $15,000 payable within 28 days.

  2. The appeal is upheld.

  3. Development Application DA23/0818 for demolition of the existing structures, and construction of a seven-storey shop top housing development, comprising of 13 dwellings and 2 retail premises, 2 levels of parking as well as associated road and public domain works at 66-68 Croydon Street, Cronulla NSW is determined by the grant of consent subject to conditions contained in Annexure ‘A’

T Horton

Commissioner of the Court 

Annexure A

**********

Decision last updated: 06 March 2025

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