Urban Luxe Property Group Pty Ltd v Sutherland Shire Council

[2023] NSWLEC 1580

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Urban Luxe Property Group Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1580

Hearing dates:

Conciliation conference on 9 August, 5 and 13 September 2023

Date of orders:

05 October 2023

Decision date:

05 October 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs as agreed or as assessed, within 28 days of any agreement or assessment.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA21/0982, as amended for the demolition of the existing single storey dwelling house and ancillary structures, and the construction of a new multi-dwelling development comprising 7 units (2 of which are affordable) over basement parking on Lot 5 in Section 9 in Deposited Plan 758511, also known as 9 King Street, Heathcote, subject to the conditions of consent annexed hereto and marked Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, cl 38

Land and Environment Court Act 1979, s 34

Rural Fire Act 1997

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

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

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

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

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.1, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.8, 6.14, 6.16, 6.17

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy – Urban Design Guidelines for Infill Development, March 2004

NSW Rural Fire Service, Planning for Bushfire Protection, November 2019

Sutherland Shire Council, Community Engagement Policy, 2019

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Urban Luxe Property Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/93291

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA21/0982 (the DA) for the demolition of the existing single storey dwelling house and ancillary structures and the construction of a new multi-dwelling development comprising eight (8) units over basement parking on land at 9 King Street Heathcote.

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 9 August 2023. I presided over the conciliation conference, which commenced with a site inspection.

3. Revised plans (dated 21, 23, 24, and 25 August 2023) (the Amended Application) constituting an amendment to the DA were submitted by the applicant, reducing the number of dwellings on site from 8 to 7 and making other design changes.

4. Five objectors (from adjoining and nearby properties) attended the onsite conference and made submissions.

5. At the conciliation conference following the on-site view, the parties reached 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 development consent to the DA subject to conditions.

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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The DA was lodged by the registered proprietors of the subject site who provided owner’s consent;

2. The DA was notified by the respondent as required under the provisions of Sutherland Shire Council Community Engagement Strategy 2019, with the last date for public submissions being 3 November 2021. Thirty-three submissions were received in response to that notification.

3. In relation to the provisions of the Sutherland Shire Local Environmental Plan 2015 (SSLEP):

1. The subject site is zoned R2 – Low Density Residential Zone pursuant to the provisions of cl 2.3 of the SSLEP; and

1. the proposed demolition and multi-dwelling housing development is permissible within the zone with development consent;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Pursuant to cl 4.1 of the SSLEP in relation to minimum subdivision lot size:

1. The parties submit that the size of the land does not raise any non-compliance with the requirements pertaining to minimum lot size;

3. Pursuant to cl 4.3(2) of the SSLEP in relation to the height of buildings (HoB) a development standard of building height of 8.5 metres is applicable to development of the subject site; and

1. The parties submit that the Amended Application does not propose any non-compliance with the HoB development standard;

4. Pursuant to cl 4.4(2) of the SSLEP, in relation to the floor space ratio (FSR) a development standard of FSR of 0.55:1 is applicable to the development of the subject site; and

1. The parties submit that the Amended Application does not propose any non-compliance with the FSR development standard;

5. The provisions of cl 5.10 of the SSLEP concern heritage conservation, the subject site is not identified as being an item of heritage significance, and is not located within the vicinity of an item of local heritage significance nor is it within a heritage conservation area;

6. The provisions of cl 5.21 of the SSLEP concern flood planning and the subject site is not located within an area marked on the flood maps in the SSLEP, therefore cl 5.21 is not engaged;

7. The provisions of cl 6.1 of the SSLEP concern acid sulfate soils; and

1. the parties submit that the land does not fall within an area mapped on the SSLEP’s acid sulfate soils map, and accordingly the provisions of cl 6.1 are satisfied;

8. The provisions of cl 6.2 of the SSLEP concern earthworks; and

1. The parties submit, and I am satisfied that the matters identified in cl 6.2(3) of SSLEP have been considered, and that the Council is satisfied as to those matters at cl 6.2(3) (a) – (h);

9. The provisions of cl 6.4 of the SSLEP concern stormwater management; and

1. The parties submit that the matters arising in cl 6.4(3) have been satisfied in the Amended Application, which includes amended stormwater plans;

10. the provisions of cll 6.5, 6.6, 6.7 and 6.8 of the SSLEP concern types of environmentally sensitive land; and

1. The parties submit, and I am satisfied that the land does not fall within land mapped as any of these types of environmentally sensitive land and thus the consideration of them does not apply;

11. The provisions of cl 6.14 of the SSLEP concern landscaped areas in certain residential, employment, conservation, and waterway zones, and applies to R2 zoned land; and

1. The parties submit that the Amended Application complies with the minimum requirement for landscaped area in accordance with the Landscape Area Map in the SSLEP;

12. The provisions of cll 6.16 and 6.17 of the SSLEP concern general and residential urban design matters; and

1. the parties submit, and I am satisfied that all of the matters set out in cll 6.16(1) and 6.17 have been satisfied in the Amended Application; and

2. the parties submit that those principles of Crime Prevention at cl 6.16(2) have been considered in the preparation of the Amended Application;

4. In relation to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), the DA has been made pursuant to the provisions of the SEPP ARH to facilitate an affordable housing component. The DA was lodged on 15 September 2021 which is prior to the repeal of the ARH SEPP and the gazettal of the current State Environmental Planning Policy (Housing) 2021, which was gazetted on 26 November 2021 and contains a general savings provision applicable to the DA at Sch 7A, s 2(1)(a); and

1. The parties submit, and I am satisfied that the proposed development is the subject of the SEPP ARH and that the following matters have been taken into consideration and have been satisfied in the Amended Application:

1. More than 20% of the gross floor area of the proposed development is to be used for the purposes of affordable housing pursuant to cl 10(1)(c); and

2. The proposed FSR complies with cl 13(2); and

3. The proposed development complies with the standards that cannot be used to refuse consent at cl 14(1);

2. The parties submit, and I am satisfied that consideration has been given to the Seniors Living Policy: Urban Design Guidelines for Infill Development as required pursuant to cl 15 and the character of the local area as required pursuant to cl 16A, and that the Amended Application results in an enhanced architectural design that is compatible with the local area;

5. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant’s Amended Application is accompanied by an updated BASIX certificate (Certificate No 1226162M_04 dated 14 September 2023) which is consistent with the Amended Application.

6. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP):

1. The parties have advised, and I am satisfied, that the subject site has been used for a substantial number of years for residential purposes, and there is no proposed change of use, and therefore no requirement for any further site investigations to satisfy the provisions of s 4.6 of the Resilience SEPP;

7. The parties submit, and I am satisfied, that the Amended Application can be approved having regard for the relevant provisions in Sutherland Shire Development Control Plan 2015 (the DCP) such that the controls in those chapters are met or if they are not met they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act;

8. The site is mapped as being bushfire prone and thus the Rural Fire Act 1997 and Planning for Bushfire Protection 2019 apply. Concurrence is required from the Rural Fire Service (RFS) for the proposal which is defined as “integrated development” pursuant to s 4.46(1) of the EPA Act; and

1. A response was provided by the RFS on 6 February 2023 with a number of recommended conditions;

9. Having considered the advice of the parties provided above at [8], I am satisfied that:

1. The applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

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

3. Approval of the proposed development Is in the public interest.

10. 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.

11. 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.

12. In making the orders to 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.

13. The Court notes that:

1. Sutherland Shire Council, as the relevant consent authority, has agreed under clause 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending development application DA21/0982 to rely upon the following documents (the Amended Application):

1. Amended architectural, landscape and stormwater and public domain works civil engineering plans are listed as follows:

Plan number	Title	Prepared by	Date
Architectural Plans
00 Issue P	Cover Sheet	Couvaras Architects	23/08/23
02 Issue P	Site Plan	Couvaras Architects	23/08/23
03 Issue P	Lower Ground Plan	Couvaras Architects	23/08/23
04 Issue P	Ground Floor Plan	Couvaras Architects	23/08/23
05 Issue P	Level 1 Floor Plan	Couvaras Architects	23/08/23
07 Issue P	Elevations	Couvaras Architects	23/08/23
07b Issue P	Elevations	Couvaras Architects	23/08/23
08 Issue P	Sections	Couvaras Architects	23/08/23
09 Issue P	Sections	Couvaras Architects	23/08/23
09A Issue P	Sections	Couvaras Architects	23/08/23
11 Issue P	Adaptable Plans- Unit 2	Couvaras Architects	23/08/23
13 Issue P	Livable Plans- Unit 1	Couvaras Architects	23/08/23
16 Issue P	Construction Management Plan	Couvaras Architects	23/08/23
17 Issue P	Material Samples and Perspectives	Couvaras Architects	23/08/23
20 Issue P	Waste Management Plan	Couvaras Architects	23/08/23
21 Issue P	Street Elevation	Couvaras Architects	23/08/23
Landscape Plans
LP01 Issue H	Landscape Title Sheet	R&M Landscape Architecture	25/08/2023
LP02 Issue H	Landscape Plan First Floor	R&M Landscape Architecture	25/08/2023
LP03 Issue H	Landscape Plan Ground Floor	R&M Landscape Architecture	25/08/2023
LP04 Issue H	Landscape Plan Lower Ground	R&M Landscape Architecture	25/08/2023
LP04 Issue H	Landscape Details	R&M Landscape Architecture	25/08/2023
Stormwater Plans
000 Issue D	Cover Sheet, Notes and Legend	Telford Civil	24/08/2023
101 Issue D	Stormwater Concept Plan	Telford Civil	24/08/2023
102 Issue D	Easement Plan, Drains results and Longitudinal Section	Telford Civil	24/08/2023
103 Issue D	WSUD Catchment Plan model and results	Telford Civil	24/08/2023
104 Issue D	OSD/WSUD/RWT Details and Calculation Sheets Sheet 1 of 2	Telford Civil	24/08/2023
105 Issue D	OSD/WSUD/RWT Details and Calculation Sheets Sheet 2 of 2	Telford Civil	24/08/2023
106 Issue D	Level 1 and Roof Plan	Telford Civil	24/08/2023
107 Issue D	Miscellaneous Details Sheet	Telford Civil	24/08/2023
Public Domain Works Civil Engineering Plans
C000 Issue E	General Notes, Locality plan and drawing schedule	Telford Civil	24/08/2023
C101 Issue E	Civil Works Layout Plan	Telford Civil	24/08/2023
C201 Issue B	Driveway Profile Longitudinal Sections	Telford Civil	21/08/2023
C301 Issue D	Shared Driveway Longitudinal Section	Telford Civil	24/08/2023
C401 Issue E	Shared Driveway Cross Sections	Telford Civil	24/08/2023
C501 Issue E	Typical Cross Section and Pavement Detail	Telford Civil	24/08/2023
BASIX Certificate
1226162M_04	BASIX Certificate	Certified Energy 1	14 September 2023

2. The amended application was filed with the Court on 28 September 2023.

14. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs as agreed or as assessed, within 28 days of any agreement or assessment.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA21/0982, as amended for the demolition of the existing single storey dwelling house and ancillary structures, and the construction of a new multi-dwelling development comprising 7 units (2 of which are affordable) over basement parking on Lot 5 in Section 9 in Deposited Plan 758511, also known as 9 King Street, Heathcote, subject to the conditions of consent annexed hereto and marked Annexure A.

G Kullen

Acting Commissioner of the Court

Annexure A 

**********

Amendments

11 October 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the to the Date of Orders and Date of Decision.

17 October 2023 - The Court of its own motion, pursuant to Rule 36.17 of the UCPR (the Slip Rule), corrects Orders on the Coversheet to include Order (1), and include the letter from NSW RFS dated 25 August 2022 in Annexure A.

Decision last updated: 17 October 2023