Tomtome Pty Ltd v Sutherland Shire Council

[2025] NSWLEC 1151

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tomtome Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1151

Hearing dates:

Conciliation conference on 13 December 2024, 10 February 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Modification Application MA24/0224 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

(2) Modification Application MA24/0224 (as amended), for alterations to floor plates internally and finished floor levels, minor amendments to facade treatment on elevations, addition of a swimming pool on level 3, and alterations to basement parking and layout at 79-81 Gerrale Street, Cronulla, is determined by way of approval.

(3) Development Consent DA23/0129 is modified subject to the conditions of consent set out at Annexure A.

(4) Development Consent DA23/0129 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential apartment building – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 98, 100, 102, 113

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Housing) 2021, Ch 4, s147, Sch 9

Cases Cited:

Tomtome Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1187

Texts Cited:

NSW Department of Planning, Apartment Design Guide (2015)

Category:

Principal judgment

Parties:

Tomtome 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):

2024/358645

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: Pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), these proceedings concern a Modification Application MA24/0224 (the MA) made directly to the Court by Tomtome Pty Ltd (the Applicant). In these circumstances, Sutherland Shire Council (the Respondent) is required to exercise certain functions of the relevant consent authority.

2. The MA seeks to modify Development Consent DA23/0129 (the parent DA), which comprises the demolition of the existing building and ancillary structures, construction of a nine-storey residential flat building containing 12 apartments, two levels of basement car parking and associated landscaping at 79-81 Gerrale Street, Cronulla NSW 2230 (the site).

3. Consent for the parent DA was granted by the Court on 17 April 2024 in proceedings Tomtome Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1187.

4. The MA was lodged with the Court on 27 September 2024 and sought approval to modify the parent DA for:

1. Alterations to floor plates internally and finished floor levels.

2. Minor amendments to facade treatment on elevations.

3. The addition of a swimming pool on level 3.

4. Alterations to basement parking and layout.

5. 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 8 November 2024 and 10 February 2025. I presided over the conciliation conference.

6. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting approval to an amended MA, subject to conditions.

7. Of note, the MA has been amended during the conciliation conference to resolve the contentions originally pressed by the Respondent, which included concerns for visual and acoustic privacy arising from the addition of the proposed swimming pool at level 3, unacceptable amenity available within apartments due to inadequate ceiling heights, unacceptable substitution of materials and inadequate manoeuvring space within the basement, amongst other contentions.

8. The design amendments include screening or relocation of otherwise visible air conditioning condenser units and amending the design of the proposed pool enclosure to eliminate opportunities for cross viewing into the neighbouring balcony. Collectively, these amendments are agreed to resolve the issues in this matter.

9. 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 4.55 of the EPA Act to modify the existing DA.

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

11. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

12. Pursuant to s 4.55(2)(a) of the EPA Act, I am satisfied the amended MA remains substantially the same as the parent DA. The amended MA results in some minor increase to the building height to account for increased slab thicknesses and building plant, whilst maintaining the approved number of dwellings, number of stories and overall form. Additionally, the MA proposes the addition of a relatively small swimming pool and proposes a reduction in the number of car spaces provided from 33 to 28.

13. The parties agree, and I am satisfied, that the MA was notified in accordance with the Respondent’s Community Participation Plan between 11 October and 28 October 2024, and again (as amended) between 28 November and 11 December 2024. The Respondent received one submission from an immediately adjacent neighbour raising concerns for acoustic and visual privacy impacts arising from the addition of the proposed swimming pool.

14. At the conciliation conference, the same objector addressed the Court to restate these concerns and the Court observed building separation, privacy and overshadowing relationships.

15. The parties agree, and I am satisfied, the amended MA addresses the concerns raised by the objector, primarily by relocating the pool further from the site boundary, eliminating opportunities for cross viewing through privacy screens and the introduction of denser vegetation, and by limiting the pool’s hours of use by way of an agreed condition of consent.

16. The parties agree, and I am satisfied, that pursuant to s 100(3) of the EPA Reg, the amended MA remains subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Accordingly, an amended BASIX Certificate No. 1360427M_05 dated 10 December 2024, has been provided by the Applicant. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

17. The parties agree, and I am satisfied, that the amended MA remains subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Relevantly, s 147 of SEPP Housing requires the consent authority to consider a range of matters prior to modifying the parent DA.

18. Accordingly, and pursuant to s 102 of the EPA Reg, the Applicant's architect IDA Design Group (Phat Huynh, NSW registered architect 10770), has prepared a Design Verification Statement confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the design quality principles set out at Sch 9 of SEPP Housing and the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved.

19. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

20. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.

2. The Applicant has lodged the amended MA with the Court on 11 February 2025.

Orders

21. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application MA24/0224 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

2. Modification Application MA24/0224 (as amended), for alterations to floor plates internally and finished floor levels, minor amendments to facade treatment on elevations, addition of a swimming pool on level 3, and alterations to basement parking and layout at 79-81 Gerrale Street, Cronulla, is determined by way of approval.

3. Development Consent DA23/0129 is modified subject to the conditions of consent set out at Annexure A.

4. Development Consent DA23/0129 (as modified by the Court) is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court

Annexure A

Annexure B

Architectural Plans (1) 

Architectural Plans (2) 

Architectural Plans (3) 

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Decision last updated: 14 March 2025