Wu and Li Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1316

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wu & Li Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1316
Hearing dates:	Conciliation conference on 3 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 of the conditions annexed hereto and marked “A”. (2) The Applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3)   The Appeal is upheld. (4)   Development Application DA18/0482 for the demolition of existing structures and construction of a multi-dwelling development comprising 11 townhouses (3 of which are affordable pursuant to Part 2 Division 1 of the SEPP (Affordable Rental Housing 2009)) over basement parking at 160 The Kingsway Woolooware is approved subject to conditions annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPLICATION – demolition of existing structures and construction of multi-dwelling housing – affordable housing – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sutherland Shire Local Environmental Plan 2015
Texts Cited:	Seniors Living Policy: Urban Design Guidelines for Infill Development, Department of Infrastructure, Planning and Natural Resources, March 2004
Category:	Principal judgment
Parties:	Wu & Li Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: A Knox, Pikes Verekers Lawyers (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/205911
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the deemed refusal of its development application DA/17/0482. As lodged, the application sought approval for the demolition of existing structures and construction of a multi-dwelling development over basement car parking comprising 11 townhouses, including four affordable housing units. The development is proposed at 160 The Kingsway, Woolooware (Lot 25 in DP 558712).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 3 July 2019. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. 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). I have formed this state of satisfaction for the following reasons:

1. Pursuant to the provisions of Sutherland Shire Local Environmental Plan 2015 (LEP 2015), the site is zoned R2 Low Density Residential land. The proposed development is permissible with consent in the zone.

2. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as in-fill affordable housing. The division applies to the site as the development sought is permissible under LEP 2015 and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH).

3. The subject site meets the definition of ‘accessible area’ on the basis of the location of bus stops on The Kingsway in proximity to the site, and is within 800m walking distance of Woolooware Railway Station (cl 4(1)(a) of SEPP ARH).

4. The development is compliant with the applicable floor space ratio that arises from the application of cl 13 of SEPP ARH and LEP 2015.

5. The development is compliant with the maximum height standard in LEP 2015.

6. I am satisfied that the application complies with the standards listed at cl 14 of SEPP ARH.

7. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with SEPP ARH.

8. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area.

9. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been lodged (BASIX Certificate 899614M_02).

10. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 of the conditions annexed hereto and marked “A”.

2. The Applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Appeal is upheld.

4. Development Application DA18/0482 for the demolition of existing structures and construction of a multi-dwelling development comprising 11 townhouses (3 of which are affordable pursuant to Part 2 Division 1 of the SEPP (Affordable Rental Housing 2009)) over basement parking at 160 The Kingsway Woolooware is approved subject to conditions annexed hereto and marked “A”.

…………………….

D M Dickson

Commissioner of the Court

Annexure A: Conditions of Consent (159 KB, pdf)

Annexure B: Approved Plans (7.76 MB, pdf)

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Decision last updated: 09 July 2019