Land and Environment Court New South Wales Medium Neutral Citation: Kellner v Sutherland Shire Council [2021] NSWLEC 1516 Hearing dates: Conciliation conference on 9 June, 28 July, 10 August 2021 Date of orders: 03 September 2021 Decision date: 03 September 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [12] Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing (townhouse) development – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 s 8.7 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land cl 7 Sutherland Shire Local Environmental Plan 2015 cll 4.3, 4.4, 6.2, 6.14 Category: Principal judgment Parties: Greg Kellner (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Messenger & Messenger Solicitors (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2021/40665 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent (Council) of Development Application DA19/0868 (development application) for demolition of existing structures and construction of a multi dwelling development consisting of 13 townhouses, basement car parking, front fence and 10 lot strata subdivision at 5 and 7 Kurrajong Street, Sutherland (Site). 2. On 9 June 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to a proposed amended development application which provided for only 10 townhouses rather than the 13 for which development consent had initially been sought. 4. After the initial conciliation the Applicant prepared proposed amended plans which the Council then notified in accordance with its policy, with the consent of the Applicant. The Council accepted that the amendments were appropriate and agreed to the amendment of the development application which was then lodged on the NSW Planning Portal on 13 August 2021. The amended development application was filed with the Court on 23 August 2021. 5. On 23 August 2021, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The parties have provided the Court with an Agreed Statement – Jurisdictional Matters wherein they agree that the Court has power to grant development consent. 8. I note: 1. The proposed development is permissible in its zone – R2 Low Density Residential – pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015). 2. The proposed development does not exceed the height control in cl 4.3 of SSLEP 2015. 3. The proposed development does not exceed the floor space ratio control in cl 4.4 of SSLEP 2015. 4. The provisions of cl 6.2 of SSLEP 2015 (Earthworks) are addressed, particularly in the report entitled "Geotechnical Investigation" prepared by GeoEnviro Consultancy Pty Ltd dated 30 June 2021. 5. The proposed development complies with the landscape area development standard in cl 6.14(3) of SSLEP 2015. 6. A BASIX Certificate has been prepared in respect of the amended development application being the revised BASIX Certificate dated 19 July 2021 (Certificate Number: 981396M_07) in compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. Clause 7 of State Environmental Planning Policy No 55— Remediation of Land (SEPP 55) has been addressed by the provision of a report entitled "Preliminary Site Investigation Report" prepared by GeoEnviro Consultancy Pty Ltd dated 30 June 2021 which concludes on page 14 that "the risk of gross chemical contamination within the site is generally considered low and the site can be made suitable for the proposed residential development". Conditions 2 and 7 ensure that the site will be made suitable for the proposed development. 1. Having considered the material provided to the Court, and for the reasons expressed by the parties, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the Court Act. 2. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 3. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 4. I make the following orders: 1. The Court notes that Sutherland Shire Council agrees to the Applicant amending the development application to rely on the following amended material: 1. Revised stormwater plans prepared by United Consulting Engineers Pty Ltd, Drawing Number 18MB7866/D01, 18MB7866/D02, 18MB7866/D03, 18MB7866/D04, 19MB7866/D05 and 18MB7866/SW1 dated 15 July 2021; 2. Revised landscape plans prepared by Canvas Landscape Architects, Drawing Number S34-L101, S34-L102, S34-L103 and S34-L104 dated 26 July 2021; 3. Revised rainwater tank location plan prepared by Habitation Design and Interiors dated 2 July 2021; 4. Revised Acoustic Report prepared by Day Design Pty Ltd dated 2 July 2021; 5. Revised Geotechnical Report prepared by GeoEnviro Consultancy Pty Ltd dated 30 June 2021; 6. Revised Contamination Report prepared by GeoEnviro Consultancy Pty Ltd dated 30 June 2021; 7. Revised BASIX Certificate dated 19 July 2021 (Certificate Number: 981396M_07); 8. Amended Arboricultural impact analysis report prepared by Landscape Matrix dated 14 July 2021; 9. Revised Architectural Plans prepared by Habitation Design and Interiors, Issue I Plans, I101, I102, I103, I104, I105, I106, I107, I108, I109, I110, I111, I112, I113, I114, I115, I116, I117, I118, I119, I120 dated 14 July 2021; and 10. Draft Strata Plan prepared by Habitation Design and Interiors Drawing Number 16035 No I101 dated 14 July 2021. 1. The Court notes that the amended development application was uploaded on the Planning Portal on 13 August 2021. 2. The Court notes that the amended development application was filed with the Court on 23 August 2021. 3. The applicant is to pay the Council's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed. 4. The appeal is upheld. 5. Development consent is granted to DA No 19/0868 for demolition of existing structures and construction of a multi dwelling development consisting of 10 townhouses, basement car parking, front fence and 10 lot strata subdivision at 5 and 7 Kurrajong Street, Sutherland, subject to the conditions contained at Annexure 'A'. ……………………… P Clay Acting Commissioner of the Court Annexure A (260492, 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: 03 September 2021