Land and Environment Court New South Wales Medium Neutral Citation: Environa Studio Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1637 Hearing dates: Conciliation conference held on 1 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Class 1 Before: Morris AC Decision: See orders below at [23] Catchwords: DEVELOPMENT APPLICATION – commercial premises – conciliation conference – agreement between the parties 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 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Category: Principal judgment Parties: Environa Studio Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: R O'Gorman Hughes (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/16908 Publication restriction: Nil 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 DA19/0904. The application sought consent for the demolition of existing structures and construction of a commercial building including basement car parking at No's 696-700 Old Princes Highway, Sutherland. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 December 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. No site view was undertaken. 4. During to 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. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council's Statement of Facts and Contentions filed on 17 March 2020. 5. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. In that regard, the Parties agree, and I am satisfied, Sutherland Shire Local Environmental Plan 2015 (LEP) is the relevant environmental planning instrument. The site is zoned B3 Commercial Core, and the amended proposal is permissible with consent. 8. The amended plans are not compliant with the development standard for Height of Buildings (cl 4.3) and are compliant with the development standard for Floor Space Ratio (cl 4.4) of the LEP. A written request seeking to vary the Height of Buildings development standard has been lodged. 9. Having regard to that written request, I am satisfied that the terms of clause 4.6 are met. The request has adequately addressed the matters required to be demonstrated by subcl (3) and in particular that compliance with the 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. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the Height of Buildings development standard and the objectives for development within the B3 Commercial Core zone in which the development is proposed to be carried out. 10. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation area (cl 5.10). It is not subject to bushfire hazard (cl 5.11) or identified as affected by acid sulfate soils (cl 6.1). 11. The site is not flood prone (cl 6.3) and stormwater issues have been satisfactorily addressed and the Council has imposed consent conditions to reflect its requirements. 12. In respect of cl 6.15, the proposal satisfies the provisions of subclauses (a) to (e). The amended plans address those requirements in cl 6.16. 13. The Council has not identified any contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land. A Detailed Site Investigation has been conducted and concludes that the site is suitable for the proposed future commercial development. Conditions of consent have been proposed that reflect the recommendations of the investigations. 14. There are no draft planning proposals that apply to the land. 15. The evidence of the Council is that the development is consistent with the provisions and objectives of the Sutherland Shire Development Control Plan 2015 (DCP) and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission. 16. The applicant has made an offer to enter into a planning agreement that would apply to the land. That agreement would provide dedication of land to the Council for the purpose of extending a laneway that will ultimately run along the southern boundary of the site and link Belmont and Merton Streets. 17. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent. 18. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed. 19. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council. 20. It is the Council's opinion that the development will not adversely affect views from adjoining properties, and I must accept this submission in at the absence of a site view. Other matters raised by person who made submissions to the Council concern the failure to comply with the amalgamation requirements of the DCP. The Council has considered this issue and, on the basis of evidence provided to it in relation to the inability of the applicant to acquire the sites at the eastern end of the amalgamated grouping, has determined that it is appropriate to vary the requirement and provide for the pattern to be split into three development sites, one being the subject site and the others the remaining lots identified in the amalgamation plan to the west to Merton Street as one parcel and the other the lots to the east to Belmont Street. I accept the Council's decision on the basis of evidence provided. 21. Accordingly, I am satisfied that the proposal is in the public interest. 22. 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. 23. The Court orders that: 1. The Applicant is granted leave to rely on the following amended documents: 1. Schedule of amendments prepared by Environa Studio Pty Ltd and dated 19 November 2020; and 2. Amended architectural plans prepared by Environa Studio Pty Ltd listed in the below table: Drawing Number Drawing Name Date 001 Photomontage 19/11/2020 101 Level 1 – First stage 19/11/2020 101B Level 1 – Second stage 19/11/2020 103 Level 3 19/11/2020 104 Levels 4-7 19/11/2020 105 Level 8 19/11/2020 106 Basement 1 19/11/2020 110 Roof plan 19/11/2020 121 Section BB 19/11/2020 123 Ramp sections 19/11/2020 130 North elevation 19/11/2020 131 South elevation 19/11/2020 132 East elevation 19/11/2020 133 West elevation 19/11/2020 210 Material + finishes schedule 19/11/2020 901 Perspective sheet 1 19/11/2020 902 Perspective sheet 2 19/11/2020 903 Perspective sheet 3 19/11/2020 904 Perspective sheet 4 19/11/2020 905 Height plane diagram 19/11/2020 980 Area calculation summary 19/11/2020 990 Site plan with future development concept – Level 1 19/11/2020 991 Site plan with future development concept – Levels 3-7 19/11/2020 1. The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, prepared by Sutherland & Associates Planning for contravention of the maximum height development standard imposed by clause 4.3 of the Sutherland Shire Local Environmental Plan 2015 and dated October 2020, is upheld. 2. The appeal is upheld. 3. Development Application no. DA19/0904 for site consolidation, demolition of existing structures, excavation and construction of a part seven part eight storey building with four levels of basement parking at 696-700 Old Princes Highway and removal of a She Oak tree at 710 Old Princes Highway is approved subject to the conditions contained at Annexure "A" and on the basis of the Applicant's offer to enter into a voluntary planning agreement as set out in Annexure "B". 4. The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in respect of the order made on 27 October 2020 and in respect of the grant of leave as above at order 1 in the agreed amount of $8,000. …………………….. Sue Morris Acting Commissioner of the Court Annexure A (386359, pdf) Annexure B (226513, pdf) Plans (11140972, pdf) ********** Amendments 03 February 2021 - Correction to typographical error at [2]. 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: 03 February 2021