Tonk Sydney Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tonk Sydney Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1011

Hearing dates:

Conciliation conference on 14 November 2023

Date of orders:

18 January 2024

Decision date:

18 January 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The applicant is to file the amended application, as outlined in Annexure A for development consent within 14 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No DA23/0363, as amended, for demolition of existing structures and construction of a five-storey residential flat building, containing a total of 20 units, with basement car parking over three levels accommodating 44 resident parking spaces and 5 visitor parking spaces at 1-3 Wood Lane, Cronulla, is determined by the grant of Development Consent, subject to the conditions set out in Annexure B.

(4) The Applicant is to pay those costs of the Respondent, thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $15,000.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7.
Land and Environment Court Act 1979, s 34.
Environmental Planning and Assessment Regulation 2021, s 38.
Sutherland Shire Local Environmental Plan 2015, cl 4.3, 4.4, 4.6, 6.2, 6.4, 6.14, 6.16, 6.17.
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
State Environmental Planning Policy (Resilience and Hazards), s 4.6.
State Environmental Planning Policy (Biodiversity and Conservation).

Texts Cited:

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

Category:

Principal judgment

Parties:

Tonk Sydney Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
J Koprivnjak (Solicitor)(Applicant)
J Amy (Solicitor)(Respondent)

Solicitors:
Dentons (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/252925

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Tonk Sydney Pty Ltd (the Applicant) against the deemed refusal, by Sutherland Shire Council (the Respondent), of Development Application No DA23/0363.

2. The application proposes the demolition of existing structures and construction of a five-storey residential flat building, containing a total of 20 units, with basement car parking over three levels accommodating 44 resident parking spaces and 5 visitor parking spaces on the land at 1-3 Wood Lane, Cronulla. The proposed development is to be undertaken on land legally described as SP 18702 and SP 8237.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 14 November 2023.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions. The agreement reached by the parties was based on amended plans and material, which were accepted by the respondent, which resolved the contentions before the Court.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned R4 High Density Residential wherein the proposed development is permitted with development consent. In determining the development application, regard has been paid to the objectives of the zone.

2. The proposed development contravenes the development standard in cl 4.3 – Height of Buildings in the SSLEP 2015 which prescribes a maximum height of 16m. The parties agree that the proposed development stands at a maximum Height of Building of 16.33m and exceeds the maximum building height by 330mm or 2.06%.

3. The applicant has provided a written request prepared by Planning Ingenuity Pty Ltd, pursuant to cl 4.6 of the SSLEP 2015, to vary this development standard. The parties agree that the written request is well founded and can be upheld.

4. The written request demonstrates that the variation is acceptable. The written request has outlined how the proposal meets the underlying objectives of the Development standard and adequately sets out the environmental planning grounds that justify the contravention of the Development Standard, including that the objectives of the standard are achieved notwithstanding non-compliance with the standard.

5. The parties are satisfied that the written request adequately addresses the matters set out in subcll 4.6(3)(a) and (b) of the SSLEP 2015. The parties are also in agreement that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the R4 zone as required by cl 4.6(4)(a) of SSLEP 2015. The reasoning to support the variation includes that:

1. the height non-compliance is minor and relates to the lift overrun, and to a lesser extent, the stairs;

2. the non-compliance is not out of character with other development in the immediate context that varies the height limit; and,

3. the objectives that seek to reduce impacts to neighbours are achieved as there are no overshadowing or privacy impacts arising from the height variation.

6. The proposed development complies with the permitted floor space ratio pursuant to cl 4.4 of SSLEP 2015 – Floor Space Ratio (FSR).

7. The parties agree that the requirements of cl 6.2 of SSLEP 2015, in respect to Earthworks, that require the consent authority to have considered the matters in subclause (3) have been met. The Applicant has provided, for consideration, a Sediment Control Plan prepared by Greenview. The application is also accompanied by a report on the Geotechnical and Environmental Services prepared by Australian Genenviro.

8. The requirements of cll 6.4 and 6.14 of SSLEP 2015, in respect to Stormwater Management and Landscaping, which require the consent authority to consider various matters, have been met. The various works required are outlined by the applicant in the Stormwater Plans prepared by Greenview and corresponding Landscape Plans prepared by SD Studios and considered by the Respondent. The parties agree that the plans are adequate, and where necessary, appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure B.

9. The parties also agree that the matters raised in cl 6.16 (Urban Design - General) and 6.17 (Urban Design – Residential) of SSLEP 2015 have been met. The Applicant prepared an assessment which addressed each of these matters in detail and the parties agree with this assessment that the proposal is satisfactory. The parties agree that the amended application , supported by the design reports, demonstrate that the required matters for consideration in cll 6.16 and 6.17 have been addressed. I agree with that assessment and that the process required by these clauses has been undertaken.

10. The development application was placed on exhibition from 14 June 2023. The application was further notified between 3 August and 4 September 2023. Two submissions were received by the respondent during the exhibition periods.

11. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

12. The Applicant has prepared an Apartment Design Guide Report and a Design Verification Statement. These documents assess the form of the proposed development against the design quality principles and Apartment Design Guide and conclude that the proposal is satisfactory. The parties agree with the outcomes of the assessment. I am satisfied that the adequate regard has been given to the requirements of State Environmental Planning Policy No 65 ­– Design Quality of Residential Apartment Development.

13. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicant assessed the likelihood of contamination on the site in the Statement of Environmental Effects and based on the investigations of the author, the Site is unlikely to be contaminated. The Respondent’s environmental scientist agrees with this assessment. The parties agree that the Site is suitable for the proposed development and I am satisfied with these conclusions based on the material provided.

14. Consideration has been given to the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The proposed development requires the removal of two Liquidambar trees which have been assessed by the Arboricultural Impact Statement lodged with development application. The removal of Liquidambar is exempt development and may be removed without development consent. The Site is not within the Georges River Catchment as mapped under the Georges River Catchment Map Sheet GRC_001. I am satisfied that the requirements of the Biodiversity SEPP have been met.

8. 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’ agreement.

9. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

10. The Court notes:

1. that Sutherland Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application to amend Development Application DA23/0363 to rely on the documents and plans specified in Annexure A (the Amended Application).

11. The Court orders that:

1. The applicant is to file the amended application for development consent, as outlined in Annexure A, within 14 days of the date of this order.

2. The appeal is upheld.

3. Development Application No DA23/0363, as amended, for demolition of existing structures and construction of a five-storey residential flat building, containing a total of 20 units, with basement car parking over three levels accommodating 44 resident parking spaces and 5 visitor parking spaces at 1-3 Wood Lane, Cronulla, is determined by the grant of Development Consent, subject to the conditions set out in Annexure B.

4. The Applicant is to pay those costs of the Respondent, thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $15,000.

Stuart Harding

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 18 January 2024