Land and Environment Court New South Wales Medium Neutral Citation: Wilson v Sutherland Shire Council [2021] NSWLEC 1272 Hearing dates: Conciliation conference on 10 May 2021 Date of orders: 21 May 2021 Decision date: 21 May 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) Leave is granted to the Applicants to rely on the amended landscaped plan by Fhurst and NPirrottina LEC-L-201 dated 10.05.21. (2) The appeal is upheld. (3) Development Application No 19/0486 for alterations and additions to existing dwelling, forming part of a dual occupancy at Lot 3 in DP 7269, known as (No 50) Kangaroo Point Road, Kangaroo Point is determined by the granting of consent subject to conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 49 Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment, cl 9 Land and Environment Court Act 1979, ss 34, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Sutherland Shire Local Environmental Plan 2015, Sch 1 cl 27, cll 4.3, 4.6, 6.1, 6.2, 6.9, 6.14, 6.16, 6.17 Cases Cited: Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Category: Principal judgment Parties: Afa Wilson (First Applicant) Eleni Wilson (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicants) J Amy (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicants) Sutherland Shire Council (Respondent) File Number(s): 2020/244380 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Afa and Eleni Wilson (the Applicants) against the Respondent's refusal of their development application DA19/0486. As amended the development application seeks consent for the construction of alternations to an existing dwelling as part of an approved dual occupancy. The development is proposed at 50 Kangaroo Point Road, Kangaroo Point (Lot 3 DP 7269). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 10 May 2021. Prior to the conciliation, the Applicants prepared amended plans and was granted leave to amend their development application. At the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the applicants be granted leave to rely on the amended plans and the appeal is upheld, subject to the conditions of consent annexed to this judgment. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) consent for the development application has been provided by the owners of the land. Further, to avoid doubt, the amended plan Annexed to this judgment and Condition 3 ensure that no approval is provided to any works below the Mean High Water mark. 2. The application was notified in accordance with the relevant development control plan and I have considered the submissions in determining the development application. I note that the notification of the amended development application resulted in no submissions in objection to the development. 3. The planning experts agree that, applying the planning principal in Coorey v Municipality of Hunters Hill [2013] NSWLEC 1187, the development proposed is appropriately characterised as alterations and additions. 4. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept that the likelihood of contamination is low. 5. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 6. State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP) applies to the development application as the site is mapped as both a Coastal Environmental Area and as a Coastal Use Area. In determining the development application, I have given consideration to the matters at cll 13 and 14 of the Coastal SEPP. 7. The Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment (GMREP 2) applies to the subject site. Clause 9 of GMREP 2 details a number of planning principles that the consent authority must consider in determining a development application. In determining the development application, I have considered these principles. 8. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (LEP 2015), the subject site is zoned E3 Environmental Management. Dual occupancies, and alterations and additions to them, are permissible through Sch 1 cl 27 of LEP 2015. In determining the development application, I have had regard to the objectives of the zone. 9. The development application breaches the maximum height control at cl 4.3(2)(c) of LEP 2015. The Applicants have filed a written request pursuant to cl 4.6 of LEP 2015 seeking to vary the development standard. I have reviewed the written request and, in accordance with cl 4.6 of LEP 2015, I am satisfied that: 1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2015). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2015). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2015 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the E3 Environmental Management zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2015 are met. 5. On appeal, the Court has the power under cl 4.6(2) of LEP 2015 to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2015 (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [29]). 6. Pursuant to cl 4.6(5) of LEP 2015 I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 7. The states of satisfaction required by cl 4.6 of the LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. The subject site is mapped as Class 5 on the Acid Sulfate Soils Map. I am satisfied that the works are not within 500m of another mapped class nor will the works lower the water table: cl 6.1 of LEP 2015. 2. As required by cl 6.2 of LEP 2015 I have given consideration to the matters in cl 6.2(3) of LEP 2015 in determining to grant consent to the development. 3. The development application is development within a foreshore area; however, the works fall within the exceptions for alterations and additions at cl 6.9(2)(a) and (c) of LEP 2015. In determining the development application, I have given consideration to the matters at cl 6.9(4) of LEP 2015. Further, I find that the matters at subcl (3) are satisfied by the amended plans. 4. The landscaped area required by cl 6.14 of LEP 2015 is met by the amended plans. 5. In determining the development application, I have given consideration to the matters at cll 6.16 and 6.17 of LEP 2015 in relation to urban design and design quality. 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' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicants to rely on the amended landscaped plan by Fhurst and NPirrottina LEC-L-201 dated 10.05.21. 2. The appeal is upheld. 3. Development Application No 19/0486 for alterations and additions to existing dwelling, forming part of a dual occupancy at Lot 3 in DP 7269, known as (No 50) Kangaroo Point Road, Kangaroo Point is determined by the granting of consent subject to conditions in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (301278, 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: 21 May 2021