Land and Environment Court New South Wales Medium Neutral Citation: JAK Merlin Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1488 Hearing dates: Conciliation conference on 24, 31 July, 28 August and 18 September 2020, final agreement filed 18 September 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to rely on the amended architectural, landscape and stormwater plans set out in Condition 2 of Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application in the amount of $10,000, to be paid within 28 days of orders being made. (3) The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, prepared by ABC Planning Pty Ltd, dated September 2020, regarding the height of buildings development standard under clause 4.3 of the Sutherland Shire Local Environmental Plan 2015, is upheld. (4) The appeal is upheld. (5) Development consent is granted to Development Application No. DA19/0730 for the demolition of existing structures and construction of a five-storey boarding house containing 62 boarding rooms and underground parking for 32 vehicles on Lots 1 and 2 in Deposited Plan 512693, known as 465 – 467 President Avenue, Kirrawee, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPLICATION – 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Sutherland Shire Local Environmental Plan 2015 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: JAK Merlin Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Jaku Legal (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2019/354193 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA19/0730 (DA). The DA sought consent for the demolition of existing structures on the site and construction of a five storey boarding house containing 72 rooms and car parking for 21 vehicles (the proposal) at 465 and 467 President Avenue, Kirrawee (the site) by Sutherland Shire Council (the Council). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24, 31 July, 28 August and 18 September 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. The amended proposal is for the demolition of existing structures on the subject site and construction of a five storey boarding house containing 62 rooms (11 single and 51 double) and car parking for 32 vehicles. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies due to the effect of cll 7, 26(d) and 27(1). The amended proposal is for a boarding house on land zoned R4 High Density Residential within the Sutherland Shire Local Environmental Plan 2015 (SSLEP). 9. Clause 28 of SEPP ARH further makes clear the amended proposal may be carried out with consent. 10. The amended proposal complies with the standards that cannot be used to refuse consent contained in cl 29 of SEPP ARH, with the exception of cl 29(2)(a) relating to building height, which I deal with below. 11. The amended proposal complies with the standards for boarding houses contained in cl 30(1) of SEPP ARH 12. Similarly, the design of the amended proposal is compatible with the character of the local area as required by cl 30A of SEPP ARH in part because of the planned transition towards high density residential uses set out within the SSLEP. 13. The amended proposal is consistent with all relevant development standards contained within the SSLEP, except as noted previously, for a non-compliance with the height of building development standard contained in cl 4.3 of the SSLEP. The amended proposed building height of 16.68m represents a variation of 4.25% to the numerical development standard of 16m, is contained to a small extent of the total site area and is attributable to a lift overrun. 14. Clause 4.6(3) of the SSLEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 15. Clause 4.6(4) of the SSLEP requires the consent authority to be satisfied the applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 16. Additionally, cl 4.6(4)(b) of the SSLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 17. The applicant has provided a clause 4.6 written request, prepared by ABC Planning Pty Ltd and dated September 2020, seeking to justify non-compliance with the height of building development standard, and demonstrate the objectives set out in cl 4.3 of the SSLEP have been met. 18. The amended proposal has been designed to be sited generally within a building envelope determined by the SSLEP building height development standard and the primary building setback controls evident within the Sutherland Shire Development Control Plan 2015. The extent of building height non-compliance is limited to a single lift overrun, which is located within the proposed development in such a manner that its visibility or overshadowing will be negligible or is eliminated entirely. As such, the objectives of the height of building standard are achieved notwithstanding non-compliance with the standard. Accepting the amended proposal is consistent with the objectives for development in the particular land use zone, I consider the development will be in the public interest. 19. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the height of building development standard. 20. I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been taken into account. The parties are agreed the subject land has been used for residential purposes since its original subdivision and there is no evidence to indicate the land is contaminated. 21. I am satisfied the relevant provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) have been taken into account. An acoustic report has been submitted, which satisfactorily addresses cll 87 and 102 of the Infrastructure SEPP, being those provisions concerned with rail and road noise, respectively. 22. A BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 23. As required by s 34(3) of the LEC Act, I therefore find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended architectural, landscape and stormwater plans set out in Condition 2 of Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent that are thrown away as a result of amending the development application in the amount of $10,000, to be paid within 28 days of orders being made. 3. The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, prepared by ABC Planning Pty Ltd, dated September 2020, regarding the height of buildings development standard under clause 4.3 of the Sutherland Shire Local Environmental Plan 2015, is upheld. 4. The appeal is upheld. 5. Development consent is granted to Development Application No. DA19/0730 for the demolition of existing structures and construction of a five-storey boarding house containing 62 boarding rooms and underground parking for 32 vehicles on Lots 1 and 2 in Deposited Plan 512693, known as 465 – 467 President Avenue, Kirrawee, subject to the conditions of consent in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (309975, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020