Land and Environment Court New South Wales Medium Neutral Citation: Kellner v Sutherland Shire Council [2022] NSWLEC 1280 Hearing dates: Conciliation conference held 29 April 2022, 17 May and 23 May 2022, final agreement filed 25 May 2022 Date of orders: 2 June 2022 Decision date: 02 June 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent DA19/0868 is modified (MA 22/0011) in the terms set out at Annexure A. (3) Development Consent DA19/0868 as modified by the Court (MA 22/0011) is set out at Annexure B. Catchwords: MODIFICATION APPLICATION – multi-dwelling housing development – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, 121B Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No.55—Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sutherland Shire Local Environmental Plan 2015, cll 5.21, 6.1, 6.2, 6.4, 6.16, 6.17 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2021) Category: Principal judgment Parties: Greg Kellner (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: T Messenger (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Messenger & Messenger Solicitors (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/1569 Publication restriction: No 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). The appeal concerns Modification Application MA22/0011 (the MA), which seeks to modify the existing Development Consent DA19/0868 (the DA) for the construction of a multi-dwelling housing development at 5-7 Kurrajong Street, Sutherland (the site). 2. More specifically, the MA seeks to alter finished floor levels of the approved basement and dwellings 8 and 9, to revise the pitch of certain roof elements, and omit a number of side windows to mitigate against privacy concerns, amongst other more minor internal planning amendments. 3. Pursuant to s 4.55(8) of the EPA Act, the Applicant has submitted the MA directly to the Court. 4. 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 29 April 2022, 17 May and 23 May 2022. I presided over the conciliation conference. 5. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter commenced with a site viewing limited in the number of participants before resuming by Microsoft Teams. 6. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. 7. 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 4.55(8) of the EPA Act to modify the existing DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The parties' agreement has followed the lodgement of an amended MA on the NSW Planning Portal on 23 May 2022, which was made with the agreement of the Respondent in accordance with cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 11. The amended MA includes design changes and additional information that cumulatively resolve the contentions raised by the Respondent, which in turn related to building form and scale, privacy and overlooking, and potential impacts on an identified tree T14, amongst other contentions. 12. Of relevance, the amended MA incorporates measures to mitigate against privacy concerns raised by neighbouring residents, and to maintain natural ground levels in the vicinity of tree T14 to ensure its integrity and retention. The amendments also bring with them improved landscape design treatments along the site's boundaries. 13. The MA was publicly notified from 25 February 2022 to 14 March 2022 in accordance with the Respondent's relevant policy. Five submissions were received by the Respondent. The parties agree that the final design changes incorporated within the amended MA satisfactorily resolve the matters raised in these public submissions. 14. The parties agree, and I am satisfied, that the Sutherland Shire Local Environmental Plan 2015 (SSLEP) is a relevant environmental planning instrument. The site is zoned R2 Low Density Residential and the proposed development - characterised as multi-dwelling housing development - is permissible with consent and that the amended MA maintains the objectives of the R2 zone. 15. The parties agree, and I am satisfied, that all principal development standards of the SSLEP are maintained by the amended MA. 16. The parties agree, and I am satisfied, that the amended MA meets the requirements of cl 5.21 - Flood planning - of the SSLEP. The site is not situated within a mapped flood area. 17. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the SSLEP, the site is not located within a mapped acid sulfate soils area. 18. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the SSLEP, the existing DA satisfactorily addressed the matters to be considered. These matters were identified in the Applicant's Geotechnical Investigation (prepared by GeoEnviro Consultancy, dated 30 June 2021). Conditions of consent have been imposed to ensure implementation of this report. 19. The parties agree, and I am satisfied, that the amended MA meets the requirements of cl 6.4 - Stormwater management - of the SSLEP. The Applicant has provided amended stormwater plans (prepared by United Consulting, dated 10 May 2022) addressing the matters for consideration set out in cl 6.4(3). Conditions of consent have been imposed to ensure implementation of the plans. 20. The parties agree, and I am satisfied, that the amended MA meets the requirements of cl 6.16 - Urban design—general - and cl 6.17 - Urban design—residential accommodation - of the SSLEP, and I note that the amended MA does not materially alter the presentation of the proposal within the streetscape when compared to the existing DA, and that design changes evident within the amended MA serve to improve privacy and the landscape design attributes of the proposal. 21. The parties agree, and I am satisfied, that State Environmental Planning Policy No. 55—Remediation of Land (SEPP 55) remains an additional relevant environmental planning instrument. The parties agree the existing DA satisfactorily addressed the requirements of cl 7 of SEPP 55, evidenced at the time by the Applicant's Preliminary Site Investigation Report, prepared by GeoEnviro Consultancy, dated 30 June 2021. Consequently, I am satisfied the site will be made suitable for the proposed residential development and further investigation is not required. 22. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A revised BASIX certificate, dated 23 May 2022, has been submitted with the amended MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate. 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. 24. The Court notes that: 1. Pursuant to cl 121B of the EPA Reg, the Applicant has amended the MA with the agreement of the Respondent. 2. The Applicant has uploaded the amended MA to the NSW Planning Portal on 23 May 2022. 3. The Applicant has filed the amended MA with the Court on 25 May 2022. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA19/0868 is modified (MA 22/0011) in the terms set out at Annexure A. 3. Development Consent DA19/0868, as modified by the Court (MA 22/0011), is set out at Annexure B. ……………………….. M Pullinger Acting Commissioner of the Court (Annexure A) (208145, pdf) (Annexure B) (278196, 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 2022