Land and Environment Court New South Wales Medium Neutral Citation: Charles v Sutherland Shire Council [2021] NSWLEC 1123 Hearing dates: Conciliation conference held on 22 January 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Class 1 Before: O'Neill C Decision: The Orders of the Court are: (1) The applicant is granted leave to amend the application to rely upon the amended plans listed in Condition 3A of the consolidated conditions of consent at Annexure A. (2) The appeal is upheld. (3) Modification Application No. MA20/0185 to modify development consent DA18/1388 (previously modified by MA20/0050) by amending conditions 2 and 3 to reinstate the tennis court, remove tree 1, delete the secondary dwelling and provide a guest bedroom, add a storage structure on the northern boundary, move the loggia towards the front boundary and move the western swimming pool towards the west, at 30-32 Matthew Flinders Place, Burraneer (Lot 14 DP 215768 and Lot 1 DP 225927) is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION — conciliation conference — agreement between the parties Legislation Cited: Coastal Management Act 2016 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Coastal Management) 2018 Sutherland Local Environmental Plan 2015 Texts Cited: Sutherland Development Control Plan 2015 Category: Principal judgment Parties: Anthony William Charles (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: C Rose (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/243102 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. MA20/0185 (modification application) to modify development consent DA18/1388 (previously modified by MA20/0050) by amending conditions 2 and 3 to reinstate the tennis court, remove tree 1, delete the secondary dwelling and provide a guest bedroom, add a storage structure on the northern boundary, move the loggia towards the front boundary and move the western swimming pool towards the west (the proposal) at 30-32 Matthew Flinders Place, Burraneer (Lot 14 DP 215768 and Lot 1 DP 225927) (the site) by Council (the Council). 2. The modification application was approved by the Council, but the approval did not approve all of the matters sought to be modified. 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 22 January 2021. I presided over the conciliation conference. 3. On 7 December 2020, the proposal was amended to respond to issues raised by the Council in the Statement of Facts and Contentions, filed 1 October 2020. On the basis of the amendments made to the proposal, the parties reached agreement at the conciliation conference as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. 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. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. Planning framework 1. The application is made pursuant to s 4.55(1A) of the EPA Act. The terms of s 4.55(1A) are: (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 1. The site is within the coastal zone, pursuant to s 5 of the Coastal Management Act 2016 and cll 6(4) and (5) of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP). Clauses 13-16 of the Coastal Management SEPP are in the following terms: 13 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following— (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. 14 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority— (a) has considered whether the proposed development is likely to cause an adverse impact on the following— (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that— (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. 15 Development in coastal zone generally—development not to increase risk of coastal hazards Development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. 16 Development in coastal zone generally—coastal management programs to be considered Development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. 1. The site is zoned E4 Environmental Living pursuant to Sutherland Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To allow for development that preserves and enhances the natural landscape setting of the locality. • To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance. • To ensure the character of the locality is not diminished by the cumulative impacts of development. • To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards. • To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development. • To share views between new and existing development and also from public space. Consideration 1. I am satisfied that the development to which the consent as modified relates is of minimal environmental impact and is substantially the same development as the development for which consent was originally granted and before that consent was previously modified, because I accept the Council's submission that the changes to the approved development in the application are minor and the features of the development originally approved remain the same. I accept the submission that the quantitative and qualitative aspects of the proposal remain the same as the proposal approved and the amendments do not create new of different amenity impacts upon neighbours and do not materially alter the visual impact of the proposal when viewed from Burraneer Bay. 2. I accept the Council's submission that the proposal was notified for a period of 21 days from 16 July to 7 August 2020 in accordance with the requirements of the Sutherland Development Control Plan 2015 and one letter of support was received during the notification period. 3. I have considered the Council's submission on jurisdictional matters (Attachment 1) and in the absence of any contrary evidence, I am satisfied that no new issues regarding adverse environmental impacts are raised by the modification application. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the application to rely upon the amended plans listed in Condition 3A of the consolidated conditions of consent at Annexure A. 2. The appeal is upheld. 3. Modification Application No. MA20/0185 to modify development consent DA18/1388 (previously modified by MA20/0050) by amending conditions 2 and 3 to reinstate the tennis court, remove tree 1, delete the secondary dwelling and provide a guest bedroom, add a storage structure on the northern boundary, move the loggia towards the front boundary and move the western swimming pool towards the west, at 30-32 Matthew Flinders Place, Burraneer (Lot 14 DP 215768 and Lot 1 DP 225927) is approved, subject to the consolidated conditions of consent at Annexure A. ______________________ Susan O'Neill Commissioner of the Court Annexure A (236729, 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: 12 March 2021