Casaceli v Sutherland Shire Council [2021] NSWLEC 1100

Land and Environment Court New South Wales

Medium Neutral Citation: Casaceli v Sutherland Shire Council [2021] NSWLEC 1100 Hearing dates: 5 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned, with the exception of Exhibits A, B and 1. Catchwords: MODIFICATION APPLICATION – pergola over an approved rooftop terrace – modification is substantially the same development – unacceptable bulk and scale – potential privacy and overlooking impacts Legislation Cited: Environmental Planning and Assessment Act 1979 s 4.55 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 s 34 Sutherland Shire Local Environmental Plan 2015 cll 2.1, 2.2, 2.3, 4.3, 3.3, 6.16, 6.17 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Lucas Casaceli (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Lucas Casaceli (Self Represented) (Applicant) J Amy (Solicitor) (Respondent)

Solicitors: Sutherland Shire Council (Respondent) File Number(s): 2020/209061 Publication restriction: No

Judgment 1. COMMISSIONER: Mr Lucas Casaceli (the Applicant) has appealed the decision of Southerland Shire Council (the Respondent) to refuse his application (Ref: MA20/0085) (the Subject Application) to modify the Respondent's grant of consent in relation to DA15/1088. The Subject Application seeks approval for the construction of pergola structures on rooftop terraces associated with his previously approved development (the Proposed Modification) at 9 and 9B Allison Road in Cronulla (the Subject Site). 2. The appeal comes to the Court pursuant to the provisions of s 4.55(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). 3. Subsequent to the appeal being filed, the Applicant sought leave to amend its modification application, and leave was granted by the Court without objection. 4. The Respondent confirmed that the Subject Application had been notified as required under the EP&A Act, the Environmental Planning and Assessment Regulation 2000 (EP&A Regulations), and the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP) and it provided copies of two objections and a letter of support at the commencement of the proceedings. The objections had raised matters in relation to: 1. potential impacts in relation to privacy and overlooking; 2. potential impacts in relation to streetscape and urban design; 3. the process of approvals granted to the Applicant for works on the subject site which involved various modification applications across an extended period. 1. The letter of support had noted that, in the opinion of the author, the Proposed Modification did not give rise to concerns in relation to bulk and scale of the building on the Subject Site. 2. The appeal had been the subject of a conciliation conference convened under s 34 of the Land and Environment Court Act 1979 and I had presided over that conciliation conference on 22 October 2020. 3. As part of a conciliation conference the Court, together with the Parties and the Respondent's expert town planner, had undertaken an inspection of the Subject Site and the building for which the Subject Application seeks approval for the Proposed Modification. 4. The Parties agreed that I should hear the appeal and I have taken account of matters observed during the site view in relation to the contentions that remain in the appeal. 5. The Applicant's plans, as amended, and upon which he relies, propose the construction of rooftop pergolas above existing and approved rooftop terraces on the Subject Site, along with the provision of new windows and awnings along the eastern and western elevations of the building. 6. The Applicant no longer proposes to enclose the rooftop terrace pergolas and, as a consequence, the Respondent concedes that the Applicant's Proposed Modification does not involve the construction of an additional storey to the approved development on the Subject Site. The Respondent also confirms that the Proposed Modification complies with the height of building and floor space ratio development standards applicable to the Subject Site under the provisions of cll 4.3 and 4.4 of Sutherland Shire Local Environmental Plan 2015 (SSLEP), respectively. 7. The Applicant, Mr Casceli, states that he seeks approval for the proposed pergola structures so that the rooftop terraces that are approved on the Subject Site are able to be better utilised by his family. 8. The Respondent states that while the Applicant's amended plans had resolved certain of the contentions originally put in the case, the contentions relating to the height, urban design and matters raised by objectors remained pressed in the appeal.