Land and Environment Court New South Wales Medium Neutral Citation: Becka v Sutherland Shire Council [2022] NSWLEC 1360 Hearing dates: Conciliation conference on 29 June 2022 Date of orders: 13 July 2022 Decision date: 13 July 2022 Jurisdiction: Class 1 Before: Mc Ewen AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application 22/0081, as amended, for the demolition of existing structures and construction of a dual occupancy with basement carparking and swimming pools on land legally described as Lot 13 in Deposited Plan 13952 known as 1 Grandview Parade, Caringbah South subject to the conditions set out in 'Annexure A'. Catchwords: DEVELOPMENT APPLICATION – demolition of existing structures, construction of attached dual occupancy, basement parking and swimming pools, CONCILIATION CONFERENCE – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning & Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, ss 34, 34AA Local Land Services Act 2013, s 60O State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 2, cl 2.7 State Environmental Planning Policy (Building Sustainability Index) BASIX 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Sutherland Shire Local Environmental Plan 2015, cll 2.5, 4.3, 4.4, 6.1, 6.2, 6.4, 6.14; sch 1, cl 28 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Ammar Becka (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Bartier Perry Pty Limited (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/98882 Publication restriction: No Judgment 1. COMMISSIONER: The nature of proceedings: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of development application no. 22/0081 (DA) by Sutherland Shire Council. 2. The DA was lodged with the respondent on 14 February 2022. The appeal was filed on 6 April 2022. 3. The appeal falls within Class 1 of the Court's jurisdiction. The statutory power to be exercised in determining the proceedings is contained in s 4.6 of the EPA Act. 4. The DA, as amended, seeks development consent for the demolition of existing structures and the construction of a dual occupancy with basement carparking and two swimming pools on land legally described as Lot 13 Deposited Plan 13952, known as 1 Grandview Parade, Caringbah South (the site). 5. The conciliation conference: The Court arranged for the appeal to be determined pursuant to the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). Under s 34AA(2), s 34 applies to the proceedings. Section 34AA(2) requires that the Court must arrange a conciliation conference between the parties as a first step in the determination of the appeal. 6. In an effort to resolve the issues in dispute between the parties, I presided over the conciliation conference under s 34(1) of the LEC Act on 29 June 2022. 7. The parties' agreement: At the conciliation conference the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involves the Court upholding the appeal and granting development consent to an amended DA subject to conditions. 8. Satisfaction of jurisdiction: 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. In this case, as noted above, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA subject to the agreed conditions of consent in Annexure A. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in a joint jurisdictional statement. The parties further explained how those prerequisites have been satisfied. The matters of relevance and the parties' explanation as to their satisfaction are summarised below. 10. Based on the evidence before me, I accept the parties' joint submission as to my jurisdiction in this case. In particular, I am satisfied in respect to the following matters: 1. Owner's consent: Owner's consent to lodge the DA has been provided as part of the documentation which accompanied the DA. 2. Sutherland Shire Local Environmental Plan 2015 (LEP 2015): 1. The zoning: The site is zoned C4 Environmental Living (C4) under LEP 2015. The proposed development is permissible with consent as an additional permitted use in the C4 zone, pursuant to cl 2.5 of LEP 2015 and sch 1, cl 28. 2. Height of buildings: The site is identified as being within an area with a height of building limitation of 8.5 metres. The proposal complies with the maximum height of building control under cl 4.3 of LEP 2015. 3. Floor space ratio: The applicable FSR standard for the site is 0.5:1. The proposed development represents a GFA of 379.35 sqm over a site area of 779.1 sqm, representing an FSR of 0.48:1. The proposed FSR is compliant with cl 4.4 of LEP 2015. 4. Acid Sulfate Soils: The site is identified as being affected by Acid Sulfate Soils, Class 5 under cl 6.1 of LEP 2015. The proposed development is not 'works within 500 metres adjacent to Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent 1, 2, 3 or 4 land'. Therefore, an Acid Sulfate Management Plan is not required. 5. Earthworks: The geotechnical report prepared by Geotechnical Consultants Australia dated 23 June 2022 satisfies the requirements of cl 6.2 and cl 6.2(3) of LEP 2015. 6. Stormwater management: The applicant has provided stormwater plans and a letter from A Wiersma dated 16 June 2022 confirming that the system satisfies the requirements of cl 6.4. 7. Landscaped area: The site is located within an area where 40 per cent of the site area is to be 'landscaped area' under cl 6.14 of LEP 2015. Accordingly, for a site area of 779.1 sqm, 311.64 sqm must be landscaped area. The proposed landscaped area is 312.15 sqm which equates to 40.06 per cent of landscaped area. The proposal therefore complies with the landscaped area requirements of LEP 2015. 1. Sutherland Shire Development Control Plan 2015 (DCP 2015): The parties are satisfied that the DA complies with the controls under DCP 2015 subject to the conditions of consent in Annexure A. 2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP): Chapter 2 – Vegetation in non-rural areas of the Biodiversity SEPP applies to the site. Pursuant to cl 2.7(1) of the Biodiversity SEPP, a permit or approval to clear vegetation is not required if the clearing is authorised under s 60O of the Local Land Services Act 2013. This is because the clearing of relevant vegetation is authorised by the subject development consent, being a consent for the purposes of Pt 4 of the EPA Act. The respondent is otherwise satisfied as to the merits of the proposed clearing of vegetation as a result of its consideration and assessment of the subject DA. 3. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP): Chapter 4 – Remediation of land of the Resilience SEPP applies to the site. Clause 4.6 of Resilience SEPP requires a consent authority to consider the contamination and remediation of land when determining a development application. The respondent's records indicate that the site has been used for residential purposes for a significant period of time with no known prior alternate land uses. The respondent is of the view that the site poses negligible risk of contamination and therefore no further consideration to cl 4.6 is required. 4. State Environmental Planning Policy (Building Sustainability Index) BASIX 2004: The Class 1 application included a BASIX Certificate dated 9 December 2021. The applicant has provided an amended BASIX Certificate dated 17 June 2022 to accompany the amended architectural plans (issue D 16 June 2022). The respondent is satisfied that the issue D plans do not trigger the need for an amended BASIX Certificate. 5. Public notification: The DA lodged with the respondent was placed on public notification between 9 March 2022 and 31 March 2022. Two submissions were received. The respondent has taken into consideration the concerns of neighbours in the assessment of the applicant's amended plans. 1. EPA Act: The parties agree that the DA, as amended, is suitable for approval having taken into consideration the relevant matters in s 4.15(1)(b)-(e) of the EPA Act. 1. Based upon the above matters, and as required by s 34(3) of the LEC Act, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. 2. Disposal of proceedings in accordance with the parties' decision: 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. 3. 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 DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning & Assessment Regulation 2000, to amend development application no. 22/0081. 2. The applicant has uploaded the amended development application on the NSW Planning Portal on 29 June 2022. 3. The applicant has subsequently filed the amended application with the Court on 29 June 2022. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application 22/0081, as amended, for the demolition of existing structures and construction of a dual occupancy with basement carparking and swimming pools on land legally described as Lot 13 in Deposited Plan 13952 known as 1 Grandview Parade, Caringbah South subject to the conditions set out in 'Annexure A'. ………………………. C McEwen Acting Commissioner of the Court Annexure A (305690, 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 July 2022