Land and Environment Court New South Wales Medium Neutral Citation: Charalambous v Sutherland Shire Council [2022] NSWLEC 1251 Hearing dates: Conciliation conference on 5 May 2022 Date of orders: 13 May 2022 Decision date: 13 May 2022 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld; (2) Development consent is granted to development application no. DA 21/0801 for the demolition of existing building and structures, excavation and construction of basement parking and construction of a 5-storey mixed use building comprising 2x commercial suites at ground level and 11 x apartments comprising 4 x 1 bedroom apartments and 7 x 2 bedroom apartments at Lot19 DP 655323, known as 62 Croydon Road, Cronulla, subject to the conditions set out in Annexure 'A'. Catchwords: APPEAL – development application – mixed use development – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 6.1, 6.2 Category: Principal judgment Parties: Costa Charalambous (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: S Berveling (Applicant) J Amy (Respondent) Solicitors: Conomos Legal (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2021/276312 Publication restriction: No Judgment 1. COMMISSIONER: Visitors to Cronulla are familiar with the multi-storey public carpark on Croydon Street, from which pedestrian access is available to Cronulla mall. Immediately south of that carpark is a small lot known as 62 Croydon Street, Cronulla that has frontage to both Croydon Street and Purley Place. Mr Charalambous seeks to redevelop that lot for the purpose of a 5-storey mixed use development comprising ground floor commercial suites with residential apartments above, and lodged a development application with Sutherland Shire Council (the Council) on 17 August 2021. Following the expiry of the period after which a development application is deemed to be refused, Mr Charalambous lodged these appeal proceedings, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 5 May 2022. I presided over the conciliation conference. 3. At the conciliation conference, 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 was acceptable to the parties. The agreement was subsequently filed on 9 May 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 4. The amendments made in the amended development application remove the roof top communal open space, which removes the breach of the height development standard that had previously been caused by the provision of stair and lift access to the roof top. The applicant instead relies on the site location in proximity to public open space including Monro Park (330m), Gunnamatta Park (620m), Cronulla Park (340m), Cronulla Mall and the beaches and ocean pools, as well as the relatively small strata that the development will create, and the large private open spaces provided to each residential dwelling. The expert town planners engaged by the parties in the appeal proceedings both agree that dispensing with the rooftop space is acceptable in such circumstances. In addition, the amended development application includes a Preliminary Site Investigation and an Acid Sulphate Soils Management Plan, which were lodged on the NSW Planning Portal on 10 May 2022. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out each of the matters about which the Court, exercising the functions of the consent authority, must be satisfied prior to granting development consent. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * Development for the purposes of commercial premises and shop top housing is permissible in the B3 Commercial Core zone in which the site is located, pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP). * The proposed development complies with the applicable development standards in the SSLEP, including the applicable height development standard of 16m that arises pursuant to cl 4.3. * The site is mapped as having Class 5 Acid Sulfate Soils and is within 500m of adjacent land mapped as Class 4, part of which is below 5m AHD. As such, cl 6.1 of the SSLEP applies. Consistent with the requirements of cl 6.1(3), an acid sulfate soils management plan has been prepared for the proposed development and I am satisfied that any disturbance of acid sulfate soils will be managed to minimise adverse impacts. * Consistent with the requirement of cl 6.2 of the SSLEP concerning earthworks and based on the Geotechnical Investigation Report by GCA Geotechnical Consultants Australia dated 15 May 2019, I have considered the matters set out in cl 6.2(3). * Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned, which is a Preliminary Site Investigation by GCA dated 6 May 2022. As the site has a history of use for residential and subsequently for office space, it is not likely to be contaminated, and will be suitable for the proposed development. * The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, 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 EPA Act. 3. The Court notes: 1. Sutherland Shire Council as the relevant consent authority for the purposes of cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) agrees to the Applicants amending development application no. DA21/0801 (Amended DA); 2. The Applicants have subsequently filed the amended DA with the Court on 4 May 2022; 3. The amended DA has been uploaded to the NSW Planning Portal. Orders 1. The Court orders that: 1. The appeal is upheld; 2. Development consent is granted to development application no. DA 21/0801 for the demolition of existing building and structures, excavation and construction of basement parking and construction of a 5-storey mixed use building comprising 2x commercial suites at ground level and 11 x apartments comprising 4 x 1-bedroom apartments and 7 x 2-bedroom apartments at Lot 19 DP 655323, known as 62 Croydon Road, Cronulla, subject to the conditions set out in Annexure 'A'. ………………………. Joanne Gray Commissioner of the Court (Annexure A) (274430, 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: 13 May 2022