Tomtome Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1187

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

Conciliation conference held 8 November, 11 December 2023, 29 January, 26 February, 25 March, 2 April and 8 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA23/0129 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to s 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 amending the Development Application in the agreed sum of $23,000 to be paid within 90 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA23/0129 (as amended) for demolition of existing structures and construction of a nine-storey residential apartment building comprising 12 apartments over two levels of basement carparking at 79-81 Gerrale Street, Cronulla, subject to the conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 38

State Environmental Planning Policy (Sustainable Buildings) 2022

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

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 9, ss 145, 147

Sutherland Local Environmental Plan 2015, cll 1.8A, 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited:

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

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/158689

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Tomtome Pty Ltd (the Applicant), against the deemed refusal of Development Application DA23/0129 (the DA) by Sutherland Shire Council (the Respondent). At the time of its lodgement, the DA sought consent for demolition of existing structures and the construction of a nine-storey residential apartment building comprising 18 apartments over two levels of basement carparking, at 79-81 Gerrale Street, Cronulla (the site).

2. 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, 11 December 2023, 29 January, 26 February, 25 March, 2 April and 8 April 2024. I presided over the conciliation conference.

3. 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 upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent, which included issues of inadequate building separation, unacceptable building height, built form and design, inadequate internal residential amenity, and inadequate information, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the two immediately adjacent neighbours, increasing building separation and amending the built form. Changes have been made to improve internal residential amenity and to provide communal open space. Further information has been provided by the Applicant. These agreed amendments also have the effect of reducing the total number of residential apartments from 18 to 12.

6. 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 amended DA.

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

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter and further appended to the s 34 agreement.

9. The DA was lodged with the Respondent on 7 March 2023 and publicly notified to 28 March 2023. Nineteen submissions were received by the Respondent raising concerns with the proposed bulk and scale, inadequate building separation, view loss, privacy and cross viewing impacts, overshadowing impacts, inadequate landscaping, inadequate lot size, traffic and parking congestion and concerns for damage to neighbouring properties during construction. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent now satisfactorily address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

10. The parties agree, and I am satisfied, that the Sutherland Local Environmental Plan 2015 (SLEP) is the relevant local environmental planning instrument. The site is zoned E2 Commercial Centre (and at the time the DA was lodged was zoned B3 Commercial core) and the proposed development - characterised as residential apartment development - is permissible with consent as saved by cl 1.8A of the SLEP.

11. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the SLEP, the amended DA is consistent with the B3 Commercial Core zone objectives, which include to provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community, to maximise public transport patronage and encourage walking and cycling, to strengthen the viability of existing commercial centres through increased economic activity, employment and resident population, and to create an attractive, vibrant and safe public domain with a high standard of urban design and public amenity.

12. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the SLEP, demolition of existing structures on the site is permissible with consent.

13. The parties agree, and I am satisfied, that all principal development standards of the SLEP have been met by the amended DA, specifically cl 4.3 - Height of buildings - and cl 4.4 - Floor space ratio.

14. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the SLEP - Heritage conservation - the site does not comprise a listed heritage item, nor is it located within a Heritage Conservation Area. However, the site is situated in the vicinity of two local parks that are listed local heritage items (Item No 1013 – 'Monro Park’ and Item No 1023 – ‘Cronulla Beach and Cronulla Park’). I am satisfied the amended DA creates no adverse impacts upon these heritage items.

15. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the SLEP - Acid sulfate soils - the site is mapped as being within a Class 5 acid sulfate soils area and is also situated within 500m of land identified as being Class 1, 2, 3 or 4. However, the amended DA does not propose works below 5m Australian Height Datum (AHD), and is therefore not considered likely to lower the water table below 1m AHD. Accordingly, I am satisfied cl 6.1 of the SLEP has been appropriately addressed.

16. The parties agree, and I am satisfied, that the DA proposes excavation forming a matter for consideration pursuant to cl 6.2 of the SLEP - Earthworks. The Applicant has provided a Preliminary Geotechnical Investigation prepared by Geotest Services. I am satisfied this report addresses the matters set out at cl 6.2(3) and has been given appropriate consideration. Agreed conditions of consent reflecting the report’s recommendations are imposed.

17. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the SLEP - Stormwater management - the amended DA is supported by Stormwater Plans prepared by GEBA Consulting which appropriately address the matters set out at cl 6.4(3) of the SLEP.

18. The parties agree, and I am satisfied, that pursuant to cl 6.14 of the SLEP - Landscaped areas in certain residential, business, industrial and environment protection zones - the site is not identified on the relevant Landscaped Area Map as requiring a minimum landscape area.

19. The parties agree, and I am satisfied, that pursuant to cl 6.16 of the SLEP - Urban design—general - and similarly, pursuant to cl 6.17 of the SLEP - Urban design—residential accommodation - the consent authority must consider those matters set out at cll 6.16(1) and 6.17. I am satisfied the design of the amended DA appropriately considers cll 6.16 and 6.17 of the SLEP and achieves an acceptable level of urban design.

20. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has, since prior to 1943, been historically used for residential purposes unlikely to result in contamination. Additionally, the Applicant has provided a Preliminary Site Investigation and a Detailed Site Investigation (DSI). The DSI concludes that the risk of contamination is minimal and that the site can be made suitable for the proposed use, subject to certain recommendations. The recommendations of the DSI are reflected in agreed conditions of consent. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

21. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

22. Pursuant to s 145 of SEPP Housing, the Respondent referred the DA to the Sutherland Design Review Panel on 23 March 2023. Advice received from the Design Review Panel has been considered by the parties and has informed design amendments made to resolve the Respondent’s contentions in this matter.

23. Further, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant's architect, IDA Design Group (and its nominated architect Mr Adriaan Winton - NSW registered architect 5347) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

24. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to s 27 of the EPA Reg, a BASIX certificate No 1360427M_02, dated 14 March 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

25. 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.

26. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 2 April 2024.

Orders

27. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA23/0129 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to s 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 amending the Development Application in the agreed sum of $23,000 to be paid within 90 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA23/0129 (as amended) for demolition of existing structures and construction of a nine-storey residential apartment building comprising 12 apartments over two levels of basement carparking at 79-81 Gerrale Street, Cronulla, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

**********

Amendments

29 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), Annexure A is corrected to include the General Terms of Approval from Water NSW.

Decision last updated: 29 April 2024