Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for MKD Architects Trust v Sutherland Shire Council [2022] NSWLEC 1487 Hearing dates: Conciliation conference on 24 June and 19 July 2022 Date of orders: 13 September 2022 Decision date: 13 September 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) The applicants written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the development standards for Height of Buildings, is upheld. (2) The applicants written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the non-discretionary development standard for Solar Access, is upheld. (3) The Appeal is upheld. (4) Development Application No. DA22/0070, for the demolition of existing structures and the construction of a six-storey residential flat building over two levels of basement carparking, with associated strata title subdivision, on the land at 25 – 27 The Grand Parade, Sutherland NSW 2232 is determined by the grant of Development Consent subject to the conditions set out in Annexure "A". (5) The Applicant is to pay those costs of the Respondent thrown away, as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount as agreed or assessed. Catchwords: DEVELOPMENT APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, cll 16, 17, 18, 19 State Environmental Planning Policy (Resilience and Hazards), cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.99 State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.5, 4.6, 6.2, 6.4 Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: The Trustee for MKD Architects Trust (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: M Parrino (Applicant) J Amy (Respondent) Solicitors: Project Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/91069 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Trustee for MKD Architects (the Applicant) against the deemed refusal, by Sutherland Shire Council, of Development Application No. DA 22/0070 which was lodged on 9 February 2022. 2. The application proposes the demolition of existing structures, and the construction of a six-storey residential flat building over two levels of basement carparking with associated strata title subdivision on the land at 25 – 27 The Grand Parade, Sutherland NSW 2232. The proposed development is to be undertaken on land legally described as Lots A and B in DP13773. 3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 24 June and 19 July 2022. 4. At the conciliation conference, the parties reached an agreement 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 the development application subject to conditions. 5. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court. The applicant lodged the amended application on the NSW Planning portal on 18 July 2022 in accordance with cl 55(1) of the Environmental Planning and Assessment Regulation 2000. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions. In reaching that state of satisfaction, I note the following: 1. The development is a form of development that is subject to the requirements of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). The parties agree that the proposal meets the relevant provisions of cl 16 and cl 17 of the Housing SEPP. 2. Clause 18 of the Housing SEPP provides for "non-discretionary development standards" which must be considered. The parties agree that the proposal does not achieve the solar access requirements of cl 18(e) which requires 3 hours solar access to 70% of the dwellings within the development. The proposal achieves 3 hours solar access to 21 of 38 units (55.26%) and 2 hours solar access to 35 of 38 units (92.11%). Notwithstanding that the proposal does not achieve the requirements for the "cannot refuse" threshold in cl 18(e), the clause is silent as to what is an acceptable level of solar access. The clause does not require a proposal to achieve a particular level of solar access. 3. The applicant has prepared a cl 4.6 written request to vary the non-discretionary development standard in order to remove any doubt as to whether a written request, pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), is required to vary the non-discretionary development standard for solar access. The parties agree that the written request is well founded, and that the written request can be upheld. 4. The applicant's written request, prepared by Avenue Planning on 6 July 2022, demonstrated consistency with zone objectives and outlined the reasons why strict adherence to the development standard was unreasonable and unnecessary and that the variation was in the public interest. The cl 4.6 written request notes that the Apartment Design Guides, applying to residential flat development, requires only 2 hours of solar access to 70% of the dwellings in order to achieve acceptable levels of amenity. 5. I accept that the proposal achieves a level of solar access that will provide sufficient amenity to the future occupants. I am satisfied that the proposal is in the public interest as it is consistent and compatible with the objectives assigned to the development standard and the R4 zone in which the development is proposed to be carried out, thereby satisfying cl 4.6(4)(a)(ii). I am satisfied that the written request adequately addresses the matters set out in subcll 4.6(3)(a) and (b) thereby satisfying subcl 4.6(4)(a)(i) of the SSLEP 2015. 6. The parties have also considered the character of the proposed development as required by cl 19(3) of the Housing SEPP. I agree with the parties that the proposed development is compatible with the existing and desired future character of the local area. 7. Pursuant to SSLEP 2015, the subject site is zoned R4 High Density Residential wherein the proposed development is permitted with development consent. In determining the development application, I have had regard to the objectives of the zone. 8. The proposed development contravenes the development standard in cl 4.3 – Height of Buildings in the SSLEP 2015. The applicant has provided a written request, prepared by Avenue Planning Pty Ltd, to vary this development standard. The parties agree that the written request is well founded and can be upheld. I have undertaken the required assessments set out by cl 4.6 of the SSLEP 2015 and agree with the position taken by the parties as described below. 9. The written request to vary the Height of Building development standard relates to the proposed breach of the maximum building height requirement under cl 4.3 of SSLEP 2015, which in relation to the subject site, prescribes a maximum height of 20m. The proposed lift overrun has a maximum height variation of 2.57m and the northern edge of the proposed roof canopy has a maximum height variation of 2.255m. 10. The applicant submitted a written request to vary the standard which notes the "lift overrun and common open space features are located centrally to the building and given likely viewing eye lines, they will not be readily visible from either street frontage or from the low-density area to the north" (page 6 cl 4.6 Avenue Planning). I accept the opinions provided in the written request and agree that the benefits of the roof top open space that contribute to the height breach provide a better environmental outcome. 11. I am satisfied that the written request adequately addresses the matters set out in subcll 4.6(3)(a) and (b) thereby satisfying subcl 4.6(4)(a)(i) of the SSLEP 2015, and that the variation to the development standard is in the public interest. In this regard, I accept that the proposed Height of Building is in the public interest as it is consistent and compatible with the objectives of the development standard and the R4 zone in which the development is proposed to be carried out, thereby satisfying cl 4.6(4)(a)(ii). 12. The proposed development complies with the permitted floor space ratio pursuant to Cl 4.4 of SSLEP 2015 – Floor Space Ratio (FSR). The proposal also complies with the FSR and the bonus FSR as permitted under the Housing SEPP. 13. The requirements of cl 6.2 of SSLEP 2015 in respect to Earthworks, that require the consent authority to have considered the matters in subclause (3), have been met. The earthworks will be undertaken in accordance with the Geotechnical Investigation Report, the Erosion and sediment control plan included within the Stormwater Management Plan, and Council's standard conditions of consent relating to excavation and earthworks. Appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A. 14. The requirements of cl 6.4 of SSLEP 2015 in respect to Stormwater Management, that require the consent authority to consider various matters, have been met. The various works required are outlined by the applicant, and where necessary, appropriate conditions ensuring the required outcomes are included in the Development Consent forming Annexure A. 15. The development application was placed on exhibition from 10 March to 1 April 2022. The parties are satisfied that the matters raised by the submitters have been adequately considered, and where appropriate, addressed in the amended application the subject of this agreement and the conditions in the Development Consent forming Annexure A. 16. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 17. The parties agree with the assessment of the matters contained within State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG) have been adequately considered. I am satisfied with the parties agreed assessment that the scheme performs adequately against the various requirements. I note, in the context of the cl 4.6 for solar access, that the scheme achieves 92% solar access to dwellings (compared with a requirement for 70%) for the minimum time of 2 hours as suggested by the ADG. 18. The application included a design verification statement for the design of the proposed development that is the subject of the agreement between the parties. 19. Consideration has been given to whether the Site is contaminated as required by cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The applicant provided a history of use of the site in the Statement of Environmental Effects prepared in support of the development application by Avenue Town Planning dated 17 December 2021 indicating that there is no reason to suspect that the site has been contaminated from previous land uses. A geotechnical study has been prepared by Geotechnical Consultants Australia dated 6 June 2022. The parties agree that the Site is suitable for the proposed development and I am satisfied with these conclusions based on the material provided. 20. Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP). The site is impacted by road noise from the adjacent Sutherland overpass and rail noise from the nearby railway line. As a result, and in accordance with s 2.99 of the Transport and Infrastructure SEPP, an acoustic assessment has been undertaken and is submitted with the development application. The acoustic report, prepared by Koikas Acoustics Pty Ltd, identifies various construction recommendations and requirements to ensure that the internal nose levels within the apartments are consistent with the requirement of the relevant standards. I am satisfied that the report and proposed conditions, in Annexure A to this judgment, adequately deal with the requirements of the Transport and Infrastructure SEPP. 1. 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' agreement. 2. 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. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicants written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the development standard for Height of Buildings, is upheld. 2. The applicants written request, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, seeking a variation to the non-discretionary development standard for Solar Access, is upheld. 3. The appeal is upheld. 4. Development Application No. DA22/0070, for the demolition of existing structures and the construction of a six-storey residential flat building over two levels of basement carparking, with associated strata title subdivision, on the land at 25 – 27 The Grand Parade, Sutherland NSW 2232 is determined by the grant of Development Consent subject to the conditions set out in Annexure "A". 5. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed. ………………………. Stuart Harding Acting Commissioner of the Court ********** Annexure A 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 September 2022