Stojanovski v Sutherland Shire Council

[2022] NSWLEC 1195

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stojanovski v Sutherland Shire Council [2022] NSWLEC 1195

Hearing dates:

Conciliation Conference on 5 April 2022

Date of orders:

13 April 2022

Decision date:

13 April 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Development application DA 21/0828 for the demolition of the existing dwelling and associated structures and the construction of a 2-storey attached dual occupancy, landscaping and other associated works and Strata title subdivision into two lots at Lot 6, DP 5353, also known as 14 Marra Place, Sylvania is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy dwelling construction – breach in FSR standard – cl 4.6 request for variation of standard - 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, cl 55

Land and Environment Court Act 1979, s s34AA

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, cll 2.3, 4.4, 4.6

Cases Cited:

Tenacity Consulting Pty Ltd v Warringah Council 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Christina Stojanovski (First Applicant)
Lila Stojanovski (Second Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
R M O’Gorman- Hughes (First and Second Applicant)
J M Amy (Solicitor) (Respondent)

Solicitors:
Alex Zlatevski Solicitor (First and Second Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2021/348460

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 21/0828 by Sutherland Shire Council (hereafter the Council) which, as amended, seeks demolition of existing structures, strata subdivision into two lots, and construction of attached dual occupancy dwellings with swimming pools, and associated drainage/earth/civil works on Lot 6, DP 5353, also known as 14 Marra Place, Sylvania (the site).

Background

2. The DA was submitted to Council on 12 August 2021, and after notification, made consistent with the relevant planning controls, 19 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 34AA of the Land and Environment Court Act 1979 (LEC Act), with an onsite view at the request of the parties, and then conference 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 21/0828, with conditions.

7. 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 exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 21/0828, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

8. 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 specifically considered and are satisfied:

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

1. Pursuant to cl 2.3 of the SSLEP, the proposed residential development is situated over land zoned E4 Environmental Living 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, however there is a breach of the floor space ratio (FSR) standard by 5%, pursuant to cl 4.4.

2. The amended DA relies on a cl 4.6 written request, seeking a variation of the non-compliant FSR, pursuant to cl 4.6 of the SSLEP. The cl 4.6 written request provided to the Court explains that the non-compliance in the FSR standard does not result in a development that is incompatible with the character of the surrounding area or results in adverse amenity, including view loss. The elements of the proposed development that result in the non-compliance will not perceptibly change the presentation of the proposed building to the streetscape or result in adverse bulk/scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard for cl 4.4.

3. The Court must be satisfied to grant consent to the DA that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the SSLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the FSR standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (for the E4 zone) and FSR (cl 4.4) standard. The breach in the FSR standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those utilising the site. The concerns raised by residents have been addressed by the proposed amendments to the design of the dwelling, which do not result from the standard non-compliances. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the FSR standard for the proposed development.

4. I am satisfied that the requirements of cl 4.6 of the SSLEP have been addressed, and that a variation in the cl 4.4 FSR development standard should be granted.

2. 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 the 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, addresses the relevant requirements of cl 4.6 of SEPP Resilience.

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

1. A BASIX Certificate (1210018M-02) issued on 4 April 2022 is relevant to the proposed development, as amended, and is identified in the conditions of consent and supports the amended DA.

4. 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 the submissions received have been adequately considered and assessed. In response to resident concerns regarding view loss, the Court is satisfied that the Council has undertaken the appropriate merit assessment, as described in Tenacity Consulting Pty Ltd v Warringah Council 134 LGERA 23; [2004] NSWLEC 140, to ensure view sharing.

Grant of consent

9. 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.

10. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that DA 21/0828 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. 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.

13. 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 21/0828.

2. The amended development application documents were lodged on the NSW Planning Portal on 5 April 2022.

3. The amended development application was filed with the Court on 5 April 2022.

14. The Court orders that:

1. The appeal is upheld.

2. Development application DA 21/0828 for the demolition of the existing dwelling and associated structures and the construction of a 2-storey attached dual occupancy, landscaping and other associated works and Strata title subdivision into two lots at Lot 6, DP 5353, also known as 14 Marra Place, Sylvania is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (275772, pdf)

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Decision last updated: 13 April 2022