Tydruce Investments Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tydruce Investments Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1616

Hearing dates:

21 October 2022

Date of orders:

08 November 2022

Decision date:

08 November 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant agrees to pay the Respondent’s costs thrown away as a result of the amended plans pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 in the amount of $8,000.

(2)   The appeal is upheld.

(3) Development consent is granted to development application DA21/0774 for the demolition of existing structures, removal of one tree and construction of a two storey multi dwelling housing development comprising nine dwellings with two units used as affordable housing pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009, basement car parking and associated works at 15 Clements Parade, Kirrawee.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 77

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Affordable Rental Housing) 2009, Div 1, cll 10, 13, 14, 15, 16A, 17

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Housing) 2021, cl 2, Sch 7A

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited:

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Sutherland Shire Council Community Engagement Policy 2019

Seniors Living Policy: Urban Design Guidelines for Infill Development, NSW Department of Planning

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Tydruce Investments Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicants)
J Amy (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/141253

Publication restriction:

No

Judgment

1. COMMISSIONER: Tydruce Investments Pty Ltd (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of its development application DA21/0774, made with owner’s consent, for the demolition of existing structures, removal of one tree and construction of a two storey multi dwelling housing development, including affordable housing, pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009, basement car parking and associated works (the Proposed Development) at 15 Clements Parade, Kirrawee (the Subject Site).

2. The Applicant’s development application as it now comes before the Court differs from the application originally lodged as follows:

1. an increase in the overall area of landscaping and an increase within the front setback;

2. a reduction in the number of units from ten units to nine units;

3. the reorientation of the rear of the units and private open space to the north, to facilitate greater access to sunlight;

4. and increased setback of the deck to unit R1;

5. a lowering of the footpath, and provision of ramps and privacy screens along the eastern boundary of the Subject Site; and

6. lowering of the floor levels of units R5 and R6.

3. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Proposed Development was notified in accordance with the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 and Sutherland Shire Council’s Community Engagement Policy 2019 between 20 August and 13 September 2021, and eight submissions were received in response to the notification.

5. On 21 October 2022, the Parties participated in a s 34AA conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

6. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy. A site inspection was undertaken prior to the conciliation conference being convened.

7. At the conciliation conference following the site view the Parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

8. 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.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. the Proposed Development is subject to the provisions of Sutherland Shire Local Environmental Plan 2015 (SSLEP), and the following provisions are of particular relevance in this appeal:

1. the Subject Site is zoned R3 Medium Density Residential pursuant to the provisions of cl 2.3 of SSLEP, and the Proposed Development is defined as “multi-dwelling housing” and is permissible with consent within the R3 zone;

2. the Proposed Development seeks consent for the demolition of existing structures which is permissible with consent pursuant to the provisions of cl 2.7 of SSLEP;.

3. the maximum height of the Proposed Development does not exceed the 9m height of buildings development standard under the provisions of cl 4.3 of SSELP;

4. the Proposed Development has a floor space ratio (FSR) of 0.65:1 and, as such, does not exceed the 0.9:1 FSR development standard that applies to the Subject Site under the provisions of cl 4.4 of SSLEP;

5. the Subject Site is not listed as a heritage item, nor is it located within a Heritage Conservation Area, pursuant to the provisions of cl 5.10 of SSLEP;

6. the Subject Site is not flood affected, pursuant to the provisions of cl 5.21 of SSLEP;

7. the Subject Site is not mapped as containing Acid Sulfate Soils (ASS) pursuant to the provisions of cl 6.1 of SSLEP;

8. the Proposed Development seeks consent for earthworks and the following matters have been considered and the Proposed Development is consistent with the matters required to be addressed under the provisions of cl 6.2(3), as outlined below:

1. the Proposed Development is designed to drain water and manage water in an on-site detention tank;

2. the Applicant’s proposed earthworks will facilitate the proposed efficient use of the Subject Site through the provision of basement car parking and it will facilitate the future residential use of the Subject Site;

3. the material that the Applicant proposes to excavate is unlikely to contain contaminated material as the Subject Site has been used historically for residential purposes and it is proposed that this use continue;

4. the Proposed Development will not result in an adverse impact on the amenity or structural integrity of adjoining properties;

5. the excavated material will be disposed of at an appropriate off-site facility;

6. the Subject Site is not identified as a heritage item and it is unlikely that relics would be found on the site; and

7. the Proposed Development and its associated stormwater management system are designed to drain water into an on-site detention tank and treat water before discharge as outlined in the Applicant’s Stormwater Plans prepared by Greenview consulting;

9. consistent with the provisions of cl 6.4 of SSLEP, the Applicant has provided a Stormwater Management Plan that confirms that the Proposed Development maximises the use of permeable surfaces, where possible, and provides an on-site detention facility as well as avoiding significant impacts on adjoining properties and native bushland;

10. as required under the provisions of cl 6.14 of SSLEP, the Proposed Development provides at least 30% of the site area as landscaped area;

11. consistent with the provisions of cl 6.16 of SSLEP, the Parties have confirmed, and I accept, that the design of the Proposed Development achieves a high quality design with the following outcomes:

1. improve the urban environment;

2. strengthen, enhance and integrate with the existing character of the locality;

3. contribute to the desired future character of the locality;

4. integrate with and facilitate the improvement of the public domain;

5. enhance and retain the natural environment;

6. respond to the natural landform of the site;

7. preserve and enhance views in the local area; and

8. prevent crime through environmental design principles;

12. consistent with the provisions of cl 6.17 of SSLEP, the Parties have confirmed, and I accept, that the design of the Proposed Development will:

1. provide housing diversity to address the needs of the local community;

2. minimise potential impacts of overshadowing, overlooking, views, privacy and visual intrusion on adjoining properties;

3. improve streetscape quality through well-designed and interesting built form;

4. provide high quality private open space of a sufficient area and dimension for the use of residents;

5. minimise potential adverse impacts on adjoining properties with respect to size, bulk, height, scale and setting;

6. integrate landscaping and residential accommodation; and

7. provide diverse and affordable forms of housing;

2. the Proposed Development is subject to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021, and in relation to this:

1. the Applicant’s Development Application was lodged under the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Urban Vegetation SEPP), and on 1 March 2022 the Urban Vegetation SEPP was repealed, and its provisions were transferred to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C).

2. an Arboricultural Assessment Report prepared by Tree and Landscape Consultants was submitted with the Development Application and the Parties agree, and I am satisfied, that the proposed removal of a tree from the Subject Site is reasonable noting that:

1. the tree proposed for removal does not comprise Koala Habitat Vegetation and its removal will not trigger the Biodiversity offset scheme; and

2. the Applicant proposes the planting of 4 replacement trees to offset the loss of the tree proposed for removal;

3. the Proposed Development seeks consent for ‘infill affordable housing’, and:

1. the Applicant’s development application is saved in relation to the application of State Environmental Planning Policy (Housing) 2021 as a consequence of its cl 2(1)(a) of Schedule 7A, and so is determined subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), and in relation to this:

2. as outlined in the Applicant’s amended Statement of Environmental Effects (SEE), Division 1 of the ARH SEPP applies to the development, and the satisfaction of relevant provisions of that SEPP is as follows:

1. in relation to the provisions of subcl 10(1)(a), the Proposed Development is permissible with consent within the R3 zoning of the Subject Site, pursuant to cl 2.3 of SSLEP;

2. in relation to the provisions of subcl 10(1)(b), the development is on land that does not contain a heritage item nor is it on the State Heritage Register;

3. in relation to the provisions of subcl 10(1)(c), the percentage of gross floor area proposed for affordable housing is at least 20%;

4. in relation to the provisions of subcl 10(1)(d), the site is located within the Sydney region and within an accessible area;

5. in relation to the provisions of cl 13 in relation FSR, the maximum floor space ratio permissible for development on the Subject Site is 0.9:1 and the Proposed Development’s FSR is 0.65:1;

6. in relation to the provisions of subcl 14(1)(b), which concerns a standard that cannot be used to refuse consent, the site area of the Subject Site exceeds 450m²;

7. in relation to the provisions of subcl 14(1)(c)(ii), which also concerns a standard that cannot be used to refuse consent, the landscaped area within the Proposed Development exceeds 30% of the site area;

8. in relation to the provisions of subcll 14(1)(d)(i)-(iii), which also concerns a standard that cannot be used to refuse consent, the deep soil zones within the Proposed Development comprise more than 15% of the Subject Site, have a dimension of at least 3m and are predominantly located in the rear of the Subject Site;

9. in relation to the provisions of subcl 14(2)(a)(ii), which also concerns a standard that cannot be used to refuse consent, the Proposed Development will provide eight parking spaces for nine one-bedroom dwellings, being at least 0.5 parking spaces per room;

10. in relation to the provisions of subcl 14(2)(b), which provides a standard that cannot be used to refuse consent, and which concerns minimum dwelling size, all dwellings within the Proposed Development are one-bedroom in scale and have an area of at least 50m² in area;

11. in relation to the provisions of cl 15 concerning design requirements, the Applicant has provided within its SEE an acceptable assessment against the Seniors Living Policy: Urban Design Guidelines for Infill Development;

12. in relation to the provisions of cl 16A concerning the character of the local area, the Parties agree, and I am satisfied, that the development is consistent with the character of the local area, and in support of this, the Applicant has provided an assessment of the compatibility of the Proposed Development with the character of the local areas within its amended SEE (Tab 19 of the Class 1); and

13. in relation to the provisions of cl 17 concerning the requirement that a proportion of the Proposed Development must be used for Affordable Housing for 10 years, the Parties have agreed to the imposition of consent condition 32 which provides that dwellings 4 and 5 within the Proposed Development will be used for affordable housing for a period of at least 10 years and will be managed by a registered community housing provider;

4. the Proposed Development is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), and in relation to this the Applicant has been provided BASIX Certificate number A429875_02 dated 2 October 2022 in respect to the amended plans, in compliance with the relevant provisions of SEPP BASIX.

5. in relation the provisions of cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the Parties advise, and I am satisfied, that the Proposed Development does not involve a change in use of the Subject Site and the Respondent’s records confirm that the past and current use of the Subject Site is for residential purposes, such that the provisions of cl 4.6 of SEPP R&H are satisfied;

6. the Parties have confirmed that the relevant provisions of Sutherland Shire Development Control Plan 2015 (SSDCP) have been considered in relation to the Proposed Development, such that:

1. the Proposed Development is either consistent with the controls in SSDCP or achieves the objectives of those controls such that it represents a reasonable alternative that merits the application of flexibility in the application of controls in SSDCP, consistent with the provisions of s 4.15(3A) of the EP&A Act; and

2. the Parties have confirmed, and I am satisfied, that there is no provision of SSDCP that would form a basis for refusal of the Proposed Development, including in relation to the mitigation of potential amenity impacts on neighbouring properties;

7. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submissions of the objectors which is a relevant consideration under s 4.15(1)(d) of the EP&A Act.

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

11. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC 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 to dispose of the proceedings in accordance with the Parties’ decision.

13. In making the orders give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

14. 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 DA21/0774 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Architectural Plans
Proposed Ground Floor Plan	2(12)00	I	30.08.2022	pH+ Architects
Proposed First Floor Plan	2(12)01	G	17.08.2022	pH+ Architects
Proposed Roof Plan/Site Plan	2(12)RF	G	17.08.2022	pH+ Architects
Proposed Basement Plan	2(12)B1	I	30.08.2022	pH+ Architects
Proposed Section AA	2(13)00	E	30.08.2022	pH+ Architects
Proposed Section BB	2(13)01	E	30.08.2022	pH+ Architects
Proposed Elevation South (Front)	2(14)00	C	05.08.2022	pH+ Architects
Proposed Elevation West/East	2(14)01	E	30.08.2022	pH+ Architects
Proposed Elevation North (Rear)	2(14)02	C	30.08.2022	pH+ Architects
Site Analysis Plan	2(15)00	A	05.08.2022	pH+ Architects
Shadow Diagram 21st June 09:00	2(16)00	D	05.08.2022	pH+ Architects
Shadow Diagram 21st June 12:00	2(16)01	D	05.08.2022	pH+ Architects
Shadow Diagram 21st June 15:00	2(16)02	D	05.08.2022	pH+ Architects
Shadow Diagram 21st September 9:00	2(16)03	D	05.08.2022	pH+ Architects
Shadow Diagram 21st September 12:00	2(16)04	D	05.08.2022	pH+ Architects
Shadow Diagram 21st September 15:00	2(16)05	D	05.08.2022	pH+ Architects
Shadow Diagram 21st December 9:00	2(16)06	D	05.08.2022	pH+ Architects
Shadow Diagram 21st December 12:00	2(16)07	D	05.08.2022	pH+ Architects
Shadow Diagram 21st December 15:00	2(16)08	D	05.08.2022	pH+ Architects
Sun Eye Diagram 21st December 9am-12pm	2(16)10	B	05.08.2022	pH+ Architects
Shadow Diagram 21st December 1pm-3pm	2(16)11	B	05.08.2022	pH+ Architects
Proposed GFA & Landscape Diagrams	2(17)00	F	17.08.2022	pH+ Architects
Proposed Storage Diagram	2(17)10	E	17.08.2022	pH+ Architects
Schedule of Materials and Finishes	2(18)00	-	June 2021	pH+ Architects
Liveable Unit (R4)	2(19)00	D	05.08.2022	pH+ Architects
Adaptable Unit (R1)	2(19)01	C	05.08.2022	pH+ Architects
Adaptable Unit (R2)	2(19)02	C	05.08.2022	pH+ Architects
Typical Unit (R9)	2(19)03	A	05.08.2022	pH+ Architects
Proposed Privacy Screen Details	2(20)00	-	June 2021	pH+ Architects
Waste Management Plan	2(21)00	E	08.08.2022	pH+ Architects
Tree Protection Zone Plan	2 (22) 00	A	05.08.2022	pH+ Architects
SK3 Height in dining	-	-	-	pH+ Architects
Amended Landscape Plans
Landscape Plan	1 of 3	D	05.09.2022	iScape Landscape Architecture
Soil Volumes Plan	2 of 3	A	06.10.2022	iScape Landscape Architecture
Sections and Details	3 of 3	A	06.10.2022	iScape Landscape Architecture
Amended Stormwater Plans
Notes and legends	C01	7	05.09.2022	Greenview Consulting
Basement 1 Drainage Plan	C02	4	05.09.2022	Greenview Consulting
Ground Floor Drainage Plan	C03	7	05.09.2022	Greenview Consulting
Site Stormwater Details Sheet 1	C04	7	05.09.2022	Greenview Consulting
Reports
Amended BASIX Certificate and NatHERS Certificate prepared by Greenview Consulting dated 8 September 2022.
Schedule of architectural amendments prepared pH+ Architects dated August 2022
Assessment against landscape control objectives under the Sutherland Development Control Plan 2015 prepared by ppd Planning Consultants dated 11 July 2022
Soil Volume and tree viability statement prepared by iScape Landscape Architecture dated 11 August 2022

2. The Amended Application identified above was lodged on the NSW planning portal on 5 October 2022.

3. That the Applicant will file the Amended Application with the Court on 10 October 2022.

Orders

15. The Court orders that:

1. The Applicant agrees to pay the Respondent’s costs thrown away as a result of the amended plans pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 in the amount of $8,000.

2. The appeal is upheld.

3. Development consent is granted to development application DA21/0774 for the demolition of existing structures, removal of one tree and construction of a two storey multi dwelling housing development comprising nine dwellings with two units used as affordable housing pursuant to the State Environmental Planning Policy Affordable Rental Housing 2009, basement car parking and associated works at 15 Clements Parade, Kirrawee.

…………………………..

M Chilcott

Commissioner of the Court

141253.22 Annexure A (303775, pdf)

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Decision last updated: 08 November 2022