Wheeler v Sutherland Shire Council

[2019] NSWLEC 1642

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wheeler v Sutherland Shire Council [2019] NSWLEC 1642
Hearing dates:	Conciliation conference on 13 December 2019
Date of orders:	24 December 2019
Decision date:	24 December 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development consent is granted to development application No. DA17/1390 for the construction of an in-ground swimming pool, paved area, stairs and garden and an extension to the verandah of the existing dwelling at 7 Neil Street, Bundeena subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – heritage rock platform - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No. 71 – Coastal Protection State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sutherland Shire Local Environmental Plan 2015
Texts Cited:	Sutherland Shire Council Planning for Bushfire Protection 2009 Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Brad John Wheeler (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Kliese (Solicitor) (Applicant) T Ward (Solicitor) (Respondent)   Solicitors: Shaw Reynolds Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2019/137044
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 17/1390 by the Sutherland Shire Local Planning Panel (SSLPP), as referred by the Sutherland Shire Council (hereafter the Council) for the construction of an in-ground swimming pool and associated structures on Lot 3 Sec B DP 18038, also known as 7 Neil Street Bundeena (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 December 2019 in Court. I presided over the conciliation conference. There were no submissions by residents at this conciliation.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA to be relied upon in the agreement.

5. Based on these amended plans and Addendum to the heritage report, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors in previous notification/s of the DA have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 17/1390 with conditions. At the conciliation, the respondent confirmed they have delegation from the SSLPP to make the agreement, based on the amended plans.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15(1) to grant consent to DA 17/1390, with conditions described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of ss 4.14 and 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy No 71 (Coastal Protection) 2018 (SEPP 71); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Sutherland Shire Local Environmental Plan 2015 (SSLEP). In addition, the Sutherland Shire Development Control Plan 2015 (SSDCP) and Council’s Planning for Bushfire Protection 2009 policy is of consideration to grant consent to the DA.

8. Section 4.14 of the EPA Act is satisfied to grant consent to the DA by compliance of the proposed development to the requirements and specifications as set out in Council’s Bushfire Protection 2009 policy and Australian Standards (AS) 3959-2009 Construction of Buildings in Bushfire Prone Areas.

9. In compliance with the requirements of the SEPP 71, the DA is supported by a Statement of Environmental Effects (SEE). The parties agree the site is subject to consideration of the requirements of the SEPP 71 due to its proximity to the coastline, and therefore the relevant clauses, namely cll 2(1) and 8 must be considered to grant consent to the DA. The parties agree that the requirements of SEPP 71 are satisfied by the siting of the proposed development in the elevated portion of the site that does not cause adverse coastal impact.

10. The proposed development is required to comply with the provisions of SEPP BASIX. A relevant BASIX Certificate for the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX.

11. The parties agree that the relevant provisions of the SSLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the E3 Environmental Management Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the SSLEP, are satisfied.

12. The proposed development does not exceed any numeric requirements for development standards of the SSLEP, and satisfies the objectives for the relative clauses. In particular, the proposed development has considered and has had regard to the rock platform, which is a local item of environmental heritage, and therefore subject to satisfaction of cl 5.10 of the SSLEP. The Heritage Impact Statement, dated 25 September 2019 and an Addendum, dated 5 November 2019, have been considered in the siting of structures as shown in amended plans of the DA which satisfies cl 5.10.

13. There are portions of the site located on environmentally sensitive land and within the foreshore area, as designated in the SSLEP. The proposed development is located, as shown in amended plans and described in conditions of consent, outside of and in consideration of these areas, which satisfies cll 6.5, 6.7, 6.8, 6.9 and 6.10 of the SSLEP. In addition, the requirements for stormwater management have been addressed to satisfy cl 6.4 of the SSLEP.

14. The parties agree that there are no unreasonable impacts to adjoining properties as a result of the proposed development. Based on the amended plans and supporting documents to the DA, the issues raised by objectors that relate to the controls as specified in the SSDCP are achieved to the satisfaction of the parties.

15. The parties agree that the requirements of the SSDCP are complied with based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the SSDCP. During the initial notification period for this DA under appeal, three submissions in objection were received by Council. Those submissions were considered by the parties, prior to reaching the agreement.

16. The amended plans that relate to the proposed development have been considered in the context of the site. Based on the amended plans and supporting documents to the DA, the contentions raised by Council and any jurisdictional requirements are resolved to the satisfaction of the parties.

17. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 17/1390 should be granted, as it satisfies the requirements of ss 4.14 and 4.15(1) of the EPA Act.

18. 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.

19. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA17/1390 for the construction of an in-ground swimming pool, paved area, stairs and garden and an extension to the verandah of the existing dwelling at 7 Neil Street, Bundeena subject to the conditions in Annexure A.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (55.4 KB, pdf)

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Decision last updated: 31 December 2019