Taylormade Pty Limited v Sutherland Shire Council

[2020] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylormade Pty Limited v Sutherland Shire Council [2020] NSWLEC 1297

Hearing dates:

Conciliation conference on 28 April 2020, 26 May 2020 and 19 June 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $8,000.00.

(3) The appeal in respect of the property known as 19 Urunga Parade, Miranda is upheld.

(4) Development Application DA19/0107 for the demolition of existing structures and construction of a mixed use development comprising a boarding house with 34 rooms and a manager’s room, ground floor commercial space and basement car parking, landscaping, and associated works at 19 Urunga Parade, Miranda is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development - boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

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

State Environmental Planning Policy No 55—Remediation of Land

Sutherland Shire Local Environmental Plan 2015

Category:

Principal judgment

Parties:

Taylormade Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
George Gourlas Lawyer (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/270804

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Sutherland Shire Council (Council) of Development Application DA19/0107 (the DA). In exercising the functions of consent authority the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 614.3m² allotment of land identified as Lot 502 DP 1236473, at 19 Urunga Parade, Miranda (the site). The DA, as originally submitted to Council on 19 February 2019, sought consent for demolition of existing structures and construction of a mixed use development comprising an 8 storey 40 room boarding house with ground floor commercial space (café) and 3 basement levels accommodating a total of 22 car, 8 motorcycle and 8 bicycle spaces. Those plans were placed on public notification between 6 and 21 March 2019. The DA was considered by Council’s Design Review Forum on 23 May 2019 and the applicant commenced proceedings in the Court on 30 August 2019.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 April, 26 May and 19 June 2020. Due to the COVID 19 restrictions in place at the time there was no site inspection as part of the conciliation conference, although I had the benefit of seeing, and being led through, various photos and videos provided by the parties depicting the site, surrounding development and streetscape.

4. As a result of the discussions at the conciliation conference on 28 April 2020 amended plans were submitted to Council and a further public exhibition was held over a three week period ending on 11 June 2020. Subsequent to the second conciliation conference on 26 May 2020 and the completion of the public exhibition on 11 June 2020, further amended plans were submitted to Council on 16 June 2020. By the time the third conciliation conference was held the parties had reached an in-principle agreement and the final s34 agreement and associated documents were filed with the Court on 25 June 2020.

5. The main changes between the development as originally submitted to Council and the development the subject of the s34 agreement are:

1. The total number of boarding rooms has been reduced from 40 to 35 (including manager’s room), and the café has been removed and replaced with commercial office space.

2. The floor levels have been adjusted so that the maximum height reduces by 2m to RL61.4 and the number of storeys reduced from 8 to 7.

3. The above ground building mass and siting has been changed such that the 10.615m long lift and fire stair core now abuts the eastern side boundary (zero setback) and the upper levels 5 and 6 have been stepped back from the western side boundary by approximately 4m, to create a minimum western side setback of 7.135m on those levels.

4. The common room has been relocated from the ground level to the rear of the new lower ground level. The previously split communal open space has been relocated from the rooftop terrace and the ground level and consolidated into one space adjacent to the common room.

5. The basement has been decreased slightly in area and its rear boundary setback increased, to allow more deep soil planting. Vehicular access to the basement levels is now provided by a car lift rather than vehicular ramp, and the number of car spaces has reduced from 22 to 20.

6. Council has advised it has assessed the amended application and considers the amended plans and documentation which the applicant seeks leave to rely on adequately addresses the contentions as set out in Part B of the Statement of Facts and Contentions and that the amended proposal is acceptable pursuant to s 4.15 of the EPA Act.

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 DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. Those matters and how they are satisfied are set out in paragraphs 8 to 11 below.

Satisfaction of jurisdiction

8. In relation to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015)

1. The site is zoned B3 Commercial Core and the proposed mixed use development is permissible with consent.

2. The development meets the objectives of the B3 Zone at clause 2.3 of SSLEP 2015.

3. The development complies with the 25m maximum height development standard at clause 4.3(2) and the 2:1 maximum floor space ratio development standard at clause 4.4(2).

4. The site is not mapped as being subject to acid sulphate soils and the development meets the objectives in clauses 6.2, 6.3 and 6.4 of SSLEP 2015.

9. In relation to the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) the parties advise that:

1. Council has investigated its register of contaminated sites and undertaken a desk top examination of its historic aerial photographs and confirms that the site has always been used for residential purposes, and

2. Council is therefore satisfied that the land is not contaminated and clause 7 of SEPP 55 is satisfied.

10. Furthermore, the conditions of consent that comprise Annexure A of the s34 agreement include a condition (number 31B) that addresses disposal of any asbestos contamination should it be encountered during demolition. I am therefore satisfied that the requirements of SEPP 55 have been satisfied.

11. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 992750M_02 dated 20 June 2020 has been provided demonstrating compliance with the BASIX SEPP.

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 orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $8,000.00.

3. The appeal in respect of the property known as 19 Urunga Parade, Miranda is upheld.

4. Development Application DA19/0107 for the demolition of existing structures and construction of a mixed use development comprising a boarding house with 34 rooms and a manager’s room, ground floor commercial space and basement car parking, landscaping, and associated works at 19 Urunga Parade, Miranda is approved subject to the conditions at Annexure “A”.

……………………

J Bindon

Acting Commissioner of the Court

Annexure A (299089, pdf)

Plans (6213031, pdf)

**********

Decision last updated: 14 July 2020