Land and Environment Court New South Wales Medium Neutral Citation: Chapman Planning Pty Limited v Sutherland Shire Council [2021] NSWLEC 1314 Hearing dates: Conciliation conference on 22 April 2021, final agreement filed 23 April 2021 Date of orders: 2 June 2021 Decision date: 02 June 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) Leave is granted to the Applicant to rely upon amended plans set out in Annexure 'A'. (2) The appeal is upheld. (3) Consent is granted to Development Application DA/2020/0348 for the demolition of all structures on the land and the erection of multi dwelling housing consisting of 5 units, basement parking and strata subdivision at 25 Bindea Street, Jannali, subject to the conditions of consent set out at Annexure 'B'. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Sutherland Shire Local Environmental Plan 2015, cll 2.3, 6.2, 6.4 State Environmental Planning Policy No 55—Remediation of Land 1998, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 8 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: Chapman Planning Pty Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: S Berveling (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/202845 Publication restriction: No Judgment 1. COMMISSIONER: This is an 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 DA2020/0348 (DA). The DA sought consent for the demolition of all existing structures, and the construction of multi-dwelling housing comprising 5 units with basement car parking and landscaping at 25 Bindea Street Jannali (the site) by Sutherland Shire Council (the Respondent). 2. Initially listed for a hearing over two days on 22 and 23 April 2021, at the conclusion of the site viewing on 22 April, and at the request of the parties, I approached the Chief Judge who agreed to reallocate the matter as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act). 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. 4. Leave was granted by the Court on 4 March 2021 for the Applicant to amend the DA and to rely on amended plans. 5. 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. The agreement involves the Court upholding the appeal and granting development consent to the amended proposal subject to conditions. 6. Whilst the amended proposal remains largely consistent with the original development application, a series of further minor amendments, imposed as conditions of consent, cumulatively resolve the contentions raised by the Respondent, which related primarily to the extent of basement, tree retention, and the maintenance of privacy for neighbours, amongst other contentions. 7. In summary, the agreed amendments and conditions of consent have the effect of improving the siting of the proposal to enhance its relationship to the immediate context, improving amenity, tree retention and privacy for the benefit of both the subject site and its immediate neighbours. The agreed conditions of consent further protect the amenity of the neighbour at 27A Bindea Street. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard the parties agree, and I am satisfied, the Sutherland Shire Local Environmental Plan 2015 (SSLEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal, characterised as multi dwelling housing, is permissible with consent. 11. I am satisfied the amended proposal meets the Zone R2 objectives set out at cl 2.3(2) of the SSLEP because it contributes to the provision of housing needs within a low density residential environment, because the final amended proposal minimises tree loss to maintain existing vegetation and landscaped character of the immediate vicinity, and because the final amended proposal generally maintains the character of the local streetscape as it presents to Bindea Street. 12. The amended proposal is consistent with all relevant development standards set out within the SSLEP, specifically the maximum height of building and maximum floor space ratio. 13. The parties agree, and I am satisfied, the amended proposal has appropriately considered the matters set out in cl 6.2(3) of the SSLEP relating to earthworks. As a consequence of the reduced extent of basement evident in the amended proposal, which will be further reduced to meet the imposed conditions of consent, greater tree retention will be achieved on the site. Additional conditions of consent have been imposed to ensure structural and geotechnical certification is provided prior to commencement of works. 14. The parties agree, and I am satisfied, the amended proposal has appropriately considered the matters set out in cl 6.4(3) of the SSLEP relating to stormwater management. Conditions of consent have been imposed to ensure the stormwater drainage system is appropriately designed and executed and in accordance with the commitments set out in the BASIX Certificate that accompanies the amended proposal. 15. I am satisfied the State Environmental Planning Policy 55–Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes not typically associated with activities that might result in contamination of the land. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed. 16. The parties agree, and I am satisfied, a BASIX Certificate, dated 22 April 2021 has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 17. I am satisfied that State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) is an additional relevant environmental planning instrument. The amended proposal seeks consent for the removal of a number of trees from the site. The effect of the Vegetation SEPP is resolved, at cl 8(1), by the granting of development consent. 18. I am also satisfied that the amended proposal, with additional imposed conditions of consent, serves to retain a number of significant trees and existing stands of vegetation across the site. The parties' experts agree on the suitability of this extent of tree retention. 19. I am satisfied that the original DA was made with the consent in writing of the owners of the site. 20. I am satisfied that the DA was publicly notified during its assessment. A number of submissions were received by the Respondent and the Court heard oral submissions from concerned neighbours and local residents during the site viewing on 22 April 2021. 21. In accordance with s 4.15 of the EPA Act, I am satisfied that in considering and responding to submissions, the final amended proposal is in the public interest. The final amended proposal and agreed conditions of consent cumulatively serve to address and appropriately resolve a range of concerns. 22. Finally, in accordance with s 4.16(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent. 23. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The orders of the Court are: 1. Leave is granted to the Applicant to rely upon amended plans set out in Annexure 'A'. 2. The appeal is upheld. 3. Consent is granted to Development Application DA/2020/0348 for the demolition of all structures on the land and the erection of multi dwelling housing consisting of 5 units, basement parking and strata subdivision at 25 Bindea Street, Jannali, subject to the conditions of consent set out at Annexure 'B'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (147227, pdf) Annexure B (380488, pdf) Plans (15207549, 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: 02 June 2021