Land and Environment Court New South Wales Medium Neutral Citation: Kennedy v Sutherland Shire Council [2020] NSWLEC 1564 Hearing dates: Conciliation conference on 9 November 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted to the Applicant to rely on the amended architectural plans and landscape plans set out in Condition 1 of Annexure A. (2) The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 dated 9 November 2020, regarding the height of buildings development standard under clause 4.3 of the Sutherland Shire Local Environmental Plan 2015, is upheld. (3) The Appeal is upheld. (4) Development consent is granted to development application No DA19/1003 for the construction of a new dwelling house and a swimming pool on Lot 46 in Deposited Plan 17074, known as 1 Willaburra Road, Burraneer, subject to the conditions of consent in Annexure A. Catchwords: APPEAL – development application – construction of dwelling house – conciliation conference – agreement reached – negligible breach of the height development standard – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Shannon Kennedy (First Applicant) Cherie Kennedy (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Staunton (Applicants) J Amy (Solicitor) (Respondent) Solicitors: Sutherland Shire Council (Respondent) File Number(s): 2020/72968 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns a development application for the construction of a new dwelling house and a swimming pool on Lot 46 in Deposited Plan 17074, known as 1 Willaburra Road, Burraneer. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). 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. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 9 November 2020. I presided over the conciliation conference. 3. At the conciliation conference, 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments that were made include the reduction of the length of the blade wall at the south-eastern corner on the ground floor, the reduction in the size of the first floor balcony, the removal of a render wall on the first floor balcony, and the removal of the roof over the sculpture garden on the eastern boundary. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development works are for the purposes of a dwelling house, which is a permissible use in the E4 Environmental Living zone, in which the site is located, pursuant to the Sutherland Shire Local Environmental Plan 2015 ("SSLEP 2015"). * The development application in the Class 1 Application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of the SSLEP 2015. The proposed maximum height of 8.785m represents a contravention of 285mm above the numerical standard. The contravention is confined to the south east corner of the roof, above an area where the site has previously been excavated. The contravention is caused by the 300mm fascia on the outside of the guttering at the south-eastern corner. I am satisfied that the written request dated 9 November 2020, lodged pursuant to cl 4.6 of the SSLEP 2015, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the fascia to remain as an attractive architectural feature in a location that does not cause adverse amenity impacts. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, the departure is minor, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The proposed development does not breach any of the other applicable development standards that apply pursuant to the SSLEP 2015. 1. Although the landscape plan shows both the site the subject of the development application, and the adjoining property at Lot 45, the development consent relates only to the site at Lot 46 in Deposited Plan 17074, known as 1 Willaburra Road, Burraneer and does not approve any works on the adjoining property at Lot 45. This is confirmed by condition 10(A)(v), which states that "The landscape plan is not approved for the adjoining site at No 3 Willaburra Road, Burraneer". 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 3. In making the orders to give effect to the agreement between the parties, 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. 4. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended architectural plans and landscape plans set out in Condition 1 of Annexure A. 2. The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 dated 9 November 2020, regarding the height of buildings development standard under clause 4.3 of the Sutherland Shire Local Environmental Plan 2015, is upheld. 3. The Appeal is upheld. 4. Development consent is granted to development application No DA19/1003 for the construction of a new dwelling house and a swimming pool on Lot 46 in Deposited Plan 17074, known as 1 Willaburra Road, Burraneer, subject to the conditions of consent in Annexure A. ………………………. J Gray Commissioner of the Court 72968.20 Gray C Annexure A (221792, 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: 17 November 2020