Land and Environment Court New South Wales Medium Neutral Citation: Innovate Architects Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1629 Hearing dates: Conciliation conference on 27 October 2020 and 9 November 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [11] Catchwords: DEVELOPMENT APPLICATION – mixed use development – cl 4.6 variation to height – conciliation conference – agreement between the parties – orders Legislation Cited: Draft State Environmental Planning Policy (Coastal Management) 2018 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sutherland Shire Local Environmental Plan 2015 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020) Category: Principal judgment Parties: Innovate Architects Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: McCabe Curwood Pty Ltd (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2020/91240 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Sutherland Shire Council's Local Planning Panel of Development Application DA18/0349 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 425.25 m2 parcel of land identified as S/P 52501 at 18 Gerrale Street, Cronulla (the site). The DA as submitted to the Sutherland Shire Council (Council) on 27 March 2018 sought consent for demolition of the existing residential flat building, the construction of a 9 storey mixed use development comprising 3 basement levels, 2 ground floor commercial tenancies, 8 residential apartments (one per floor), a roof terrace with swimming pool and 10 lot strata subdivision. The DA was exhibited from the second half of May 2018 and closing on 4 June 2018, with 69 submissions received. 3. In November and December 2018 amended plans prepared by Innovate Architects and dated 01/11/2018 (the Issue B plans) and outstanding information were submitted to Council and the amended application renotified for a period ending on 23 January 2019. Fifty-two submissions were received. On 1 October 2019 the DA, as amended by the Issue B plans, was refused by the Council's Local Planning Panel and on 23 March 2020 the Applicant lodged this Class 1 Appeal with the Court. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 27 October 2020 and 9 November 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference. Also due to the COVID-19 Policy oral submissions from objectors were taken via a Microsoft Teams link, on the morning of 27 October 2020. A bundle of public submissions was filed with the Court on 26 October 2020 to allow for their consideration at the conciliation conference. 5. Further minor amendments to the DA plans were then made to address concerns raised by Council during the s34 conference and in the public submissions. The parties advised the Court on 16 November 2020 that they had reached an agreement and provided to the Court a copy of that agreement along with draft conditions. On 2 December 2020, the parties filed a revised Clause 4.6 variation request relating to the height of buildings standard and a revised BASIX certificate (No. 907855M_06 dated 30 October 2020), as referred to in the s34 agreement. A Design Verification Statement prepared by Mr Cameron Rice Jones, Registered Architect, and dated November 2020 was also filed with the Court on 2 December 2020. On 15 December 2020 the parties filed with the Court a slightly amended, final version of the s34 agreement. 6. The main changes between the Issue B plans, as refused by Council's Local Planning Panel on 23 March 2020, and the final plans the subject of the s34 agreement are: 1. The 3 basement levels, and car lift arrangement servicing those levels, have been reconfigured. 2. The residential apartment layout for all floors has been revised, resulting in several changes to the balconies, including the removal of the balconies in the north-east and north-west corners, removing or reducing the extent of boundaries on the eastern and southern elevations, and increasing the setback of the balconies in the south-west corner. 3. Removal of the roof top common open space, swimming pool and associated structures and facilities, including the lift and stair access, such that the roof is now occupied only by the lift overrun, mechanical plant and associated screening. 4. Reducing the maximum height of the building (at the lift overrun) by 3.3m from RL49.6 to RL46.3. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s34(3) of the LEC Act. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015) are: 1. The development is for the purpose of a mixed use development, comprising commercial tenancies and residential apartments, which is a use permissible with consent in the B3 Commercial Core Zone (B3 Zone). 2. I accept the advice of the parties that the development contravenes, or may contravene, the 30m height of buildings development standard at cl 4.3 of the SSLEP 2015, and that the areas that exceed the height standard are the centrally located lift overrun and screening to the rooftop mechanical plant (a 4% increase), and the roof parapet (a 3% increase). 3. The parties agree that the written request under cl 4.6 of SSLEP 2015 (prepared by City Plan Strategy and Development, dated 6 November 2020) seeking a variation to the height of building development standard is acceptable and should be upheld. For the reasons contained in the clause 4.6 variation request, I am satisfied that the applicant's written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the SSLEP 2015 are therefore satisfied. 4. I am also satisfied, for the reasons set out in the cl 4.6 variation request, that the written request has adequately addressed the matters required to be demonstrated under 4.6(3) of the SSLEP 2015, and the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the SSLEP 2015 are therefore satisfied. 1. The jurisdictional matters in relation to other relevant statutory instruments are: 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cll 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. The Applicant has submitted a Preliminary Site Assessment, prepared by Environmental Investigation Services dated 12 October 2018, which did not identify any contamination onsite and concluded that remediation is not considered to be required. It nevertheless made recommendations for further investigations following demolition. Those recommendations have been picked up and included in the conditions of consent, and Council has advised that it is satisfied that if the land is contaminated it can be made suitable for the residential use. 2. In relation to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) a Design Verification Statement, as required under cll 50(1A) and 50(1AB) of the Regulation prepared by Mr Cameron Jones, Registered Architect and dated November 2020 has been provided, and there are conditions of consent requiring further design verification at the Construction Certificate stage and prior to the issuing of an Occupation Certificate. 3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a Certificate number 907855M_06 dated 30 October 2020 has been provided demonstrating compliance with the BASIX SEPP, and the conditions of consent refer to this Certificate. 4. Draft State Environmental Planning Policy (Coastal Management) 2018 (Draft Coastal SEPP) applied at the time the DA was lodged and is therefore a matter for consideration. Council has considered the factors in cl 14 of the Draft Coastal SEPP and found the development to be satisfactory in terms of those factors, and concluded that the proposed development is not likely to cause increased risk of coastal hazards. Disposal of proceedings in accordance with the parties' decision: 1. 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' agreement. 2. The Court orders: 1. Leave is granted to the applicant to amend the development application DA 18/0349 to rely on the following amended plans and materials: 1. Amended architectural plans by Innovate Architects Pty Ltd dated and numbered as follows: Plan name and number Issue number Date Site Plan 01 F 12.10.20 Basement 3 Floor Plan 02 H 3.11.20 Basement 2 Floor Plan 03 H 3.11.20 Basement 1 Floor Plan 04 H 3.11.20 Ground Floor Plan 05 H 3.11.20 Level 1 Floor Plan 06 H 3.11.20 Level 2 Floor Plan 07 H 3.11.20 Level 3 Floor Plan 08 H 3.11.20 Level 4 Floor Plan 09 H 3.11.20 Level 5 Floor Plan 10 H 3.11.20 Level 6 Floor Plan 11 H 3.11.20 Level 7 Floor Plan 12 H 3.11.20 Level 8 Floor Plan 13 H 3.11.20 Roof Plan 15 I 12.11.20 Elevations 16 I 12.11.20 Elevations 17 I 12.11.20 Streetscape Elevations 18 I 12.11.20 Sections 19 I 12.11.20 Detailed Façade Section 20 F 12.10.20 Calculations 21 F 12.10.20 Shadow Diagrams 22 F 12.10.20 Solar Access 23 F 12.10.20 Shadow Impacts on Cecil Munro 24 F 12.10.20 ADG Calculations 25 F 12.10.20 Privacy Analysis 26 F 12.10.20 Potential Adjacent Development 27 G 27.10.20 Cronulla Skyline Analysis 28 G 27.10.20 Cronulla Skyline Study 29 F 12.10.20 Solar Eye Diagrams 30a F 12.10.20 Solar Eye Diagrams 30b F 12.10.20 Location of Nearby Open Spaces 31 F 12.10.20 19 Gerrale Street View Analysis 32 G 27.10.20 DA Issue Comparison 35 F 12.10.20 Proposed Development 3d Views 36 G 27.10.20 Additional Requested Images 37 G 27.10.20 Height Section 38 G 27.10.20 1. Landscape plans by Site Design + Studios dated 30 October 2020 and numbered L-01 H, L-02 H and L-03 H. 2. BASIX Certificate numbered 907855M_06 dated 30 October 2020 3. Clause 4.6 variation request in relation to clause 4.3 Height of Buildings Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). 1. The applicant shall pay the respondent's costs pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $20,000 on or before 18 December 2020. 2. The Applicant's written request pursuant to clause 4.6 of SSLEP 2015 seeking to justify contravention of the Height of Buildings development standard under clause 4.3 of SSLEP 2015, has been considered and the necessary opinion of satisfaction formed under clause 4.6(4) of SSLEP 2015. 3. The appeal is upheld. 4. Development consent is granted to DA 18/0349 (as amended) for demolition of the existing residential flat building, construction of a mixed-use development comprising 3 basement levels, 2 ground floor commercial tenancies, 8 residential apartments and a 10 lot strata subdivision at 18 Gerrale Street, Cronulla NSW 2230, subject to the conditions at Annexure "A". ………………………….. J Bindon Acting Commissioner of the Court Annexure A (508787, pdf) Plan (1434547, 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 December 2020