Cheong v Sutherland Shire Council [2020] NSWLEC 1635

Land and Environment Court New South Wales

Medium Neutral Citation: Cheong v Sutherland Shire Council [2020] NSWLEC 1635 Hearing dates: Conciliation conference on 20 November 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [14] Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 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: Reno Cheong (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: N Sandstrom (Solicitor) (Applicant) J Amy (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/179979 Publication restriction: No

Judgment 1. COMMISSIONER: Reno Cheong (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of his modification application MA20/0054 (the Subject Application), made with the owners' consent, seeking to modify development consent DA15/1197 in relation to the construction of a new dwelling and swimming pool (the Approved Development) at 30 Sproule Road, Illawong (the Subject Site). 2. The Subject Application seeks to modify the approved height of the new dwelling to provide for an increase in height by 545mm. 3. The Subject Site is subject to a split zoning with the majority of the site zoned E4 Environmental Living, and a smaller portion of the site zoned E2 Environmental Conservation, "pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP). The Approved Development sits on the E4 zoned portion of the Subject Site and is permissible with consent within that zone. 4. The appeal comes to the Court pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 8.14 of the EP&A Act. 5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 20 November 2020, and I presided over that conciliation conference. 6. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy and no site view was undertaken during the conference. 7. 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. This decision involved the Court upholding the appeal and approving the Applicant's modification application, subject to conditions. 8. 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. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. the Parties submitted, and I am satisfied, that, pursuant to the provisions of s 4.55(2) of the EP&A Act: 1. the development to which the consent as modified relates is substantially the same development as the Approved Development for which consent was originally granted, and before that consent as originally granted was modified; 2. the original development application to which this modification application relates was referred to the NSW Rural Fire Service (NSW RFS). As the Subject Modification does not change the location of the approved dwelling, and does not give rise to changes in relation to the doors, windows or landscaping, as originally approved, there is no requirement for any referral back to the NSW RFS in relation to the Subject Application; 3. the Applicant's modification application was notified in accordance with the requirements of the EP&A Act, the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and Sutherland Shire Development Control Plan 2015, and no submissions were received in relation to that notification. 1. the consent granted for the Approved Development approved a breach of the height of building development standard within cl 4.3 of SSLEP. The Applicant's modification application will increase further the breach of the height of buildings development standard in SSLEP. However, consistent with the provisions of s 4.55(4) of the EP&A Act, the modification of a development consent in accordance with that section is taken not to be the granting of development consent under Part 4 of the EP&A Act. Consequently, the further breach in height of buildings development standard in cl 4.3 of SSLEP does not breach the provisions of cl 4.6 of SSLEP which provides for exceptions to development standards in that instrument. 2. there is no need for an amended BASIX certificate pursuant to the provisions of s 115(6) of the EP&A Regulation as no changes are proposed to the windows and doors of the Approved Development. 1. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.14 of the EP&A Act have been so satisfied. 2. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 3. 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. 4. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the Parties. 5. The Court orders that: 1. The appeal is upheld. 2. Modification application MA20/0054 seeking to modify development consent DA15/1197 to provide for an increase in building height by 545mm at 30 Sproule Road, Illawong, is approved subject to the conditions in Annexure A.