Land and Environment Court New South Wales Medium Neutral Citation: Terbass Pty Limited v Sutherland Shire Council [2022] NSWLEC 1649 Hearing dates: 23 and 24 August 2022, 10 October 2022 and 8 November 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders, by consent: (1) The appeal is upheld. (2) Development application DA 20/1122 for the demolition of existing structures, removal of trees and construction of a 4-storey boarding house containing 26 boarding rooms (inclusive of the manager's room) – 12 x double and 14 x single rooms for a maximum of 38 occupants over two levels of basement containing parking for 13 cars on land described as SP 14049 located at 24 Searl Road, Cronulla is determined by the grant of consent subject to the conditions in Annexure 'A'. (3) Exhibits A, N, O, R, 10 and 14 are retained. Exhibits B-M, P, Q, S and 1-9, 11-13 and 15-18 are returned. Catchwords: DEVELOPMENT APPLICATION – construction of four storey boarding house, basement parking and landscaping – consent orders. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.16, 8.7, 8.15 Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 29, 30, 30A State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Infrastructure) 2007 cll 102, 103 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Sutherland Shire Local Environmental Plan 2015 cll 2.3, 4.3, 5.10, 6.1, 6.2, 6.4, 6.14, 6.17 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Terbass Pty Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: J Farrell (Applicant) J Cole (solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) J Cole Planning Solicitors (Respondent) File Number(s): 2022/20731 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are a Class 1 appeal filed with the Court on 22 January 2022 and made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Sutherland Shire Council (respondent) following the refusal by the Sutherland Local Planning Panel (Panel) on 14 December 2021 of development application DA 20/0154 (DA) for the demolition of an existing residential flat building and the construction of a new multi-level boarding house above two levels of basement parking. 2. The DA was lodged with the respondent on 21 December 2020. The development, in its amended form, is to be on land at 24 Searl Road, Cronulla legally described as SP 14049 (site). 3. In exercising the functions of the consent authority on appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 4. The hearing took place on 23 and 24 August 2022, 10 October 2022 and 8 November 2022, and included a view of the site and the surrounding area on the first day of the hearing in the company of the parties' representatives. Evidence was given on site by a number of residents who expressed their concerns with the form of the development and outlined the traffic and amenity impacts they believed that the development would have upon public and private amenity. 5. With the agreement of the parties and the Court, amendments were made to the DA in October 2022 that ultimately resolved all the outstanding contentions in the proceedings. These amendments were notified to the residents, were the subject of written submissions from a number of residents, and expert testimony, all of which have been considered by the Court in the assessment of the DA. 6. The parties now request that consent orders be made upholding the appeal and that development consent be granted to the DA in its amended form and subject to agreed conditions in Annexure 'A'. The Court is required to be satisfied that it is both lawful and appropriate to make consent orders as have been agreed between the parties. Outcome of the appeal 1. For the reasons set out in this judgment, I have determined that the appeal should be upheld and that development consent should be granted to the amended DA subject to the conditions in Annexure 'A'. The site and its context 1. The site is rectangular in shape and has an area of 594.2 m2. The site presently contains an older style two storey red brick residential flat building containing four apartments with at-grade parking and a courtyard within the front setback and upon the western side of the building. All existing improvements are to be demolished. 2. Development directly adjoining the site to the east, west and south comprises three storey residential flat buildings of various age, design and construction. No. 22 Searl Road to the west and no. 26 Searl Road to the east have access via Searl Road. Buildings to the south of the site are accessed via Burraneer Bay Road. Pitched roof forms are predominant in the local area. 3. The site is within walking distance of the Cronulla town centre, with retail services, recreation opportunities and transport links. 4. The site and the properties surrounding it are zoned R4 High Density Residential pursuant to Sutherland Shire Local Environmental Plan 2015 (SSLEP) and development for the purpose of boarding houses is a nominate permissible use with consent. The proposed development comfortably complies with the height, floor space and landscape controls contained within SSLEP. Issues that were in dispute between the parties 1. Prior to the amendments to the DA made by the applicant in October 2022, the parties were at issue with respect to a number of contentions raised by the respondent and recorded in the amended statement of facts and contentions filed 16 August 2022 (Ex 10). Those contentions are summarised below: 2. Contention 1: Streetscape character – building form, compatibility with the present and future character of the local area. 3. Contention 2: Inadequate landscaping, including landscape treatment of the front setback area, inconsistency with desired future character, likely impact of the development upon an existing street tree in close proximity to the proposed driveway. 4. Contention 3: Poor design and failure to comply with requirements of the Sutherland Shire Development Control Plan 2015 (SSDCP). 5. Contention 4: Unacceptable external amenity – lack of solar access, privacy and acoustic impact. 6. Contention 5: Inadequate driveway design and provision for parking onsite, particularly related to the proposed driveway width and the use of car stackers in the two-level basement. 7. Contention 6: Unsatisfactory arrangements for the collection of waste based upon the geometry of the driveway and the difficulty of transporting large waste receptacles from the basement to the ramped driveway collection point. 8. The above contentions were eventually resolved by a series of amendments to the original development proposal, whereby the proposed building was further set in from the boundaries, increasing the available landscape space with the communal deck moved to the front of the building and reoriented. The north-western wall of the building facing Searl Road was splayed at its upper level to decrease overshadowing impact upon the eastern communal courtyard of the neighbouring to the west at 26 Searl Road. Acoustic/privacy screens were incorporated on the western and eastern edges of the deck to reduce amenity impacts upon 26 and 22 Searl Road. 9. Visual privacy concerns between the proposed building and the neighbouring properties were agreed by the parties' respective planning experts to have been resolved by the incorporation of 'eyelid windows' within the window openings of those rooms which had no north or south-facing windows. This reduced the need for privacy screens to those windows and permitted direct solar access to those rooms. The reduction of rooms from 31 to 26 (25 boarding rooms and 1 manager's room) and a rearrangement of the location of some rooms, and internal design changes, led to the agreed position of satisfactory internal amenity. 10. The driveway width was increased from 3.5 m to 5.5 m in proximity to the street boundary, as had been originally requested by the respondent. The tapered widening was made possible because, unconnected with these proceedings, Council staff or their contractors removed the street tree, which had been located in close proximity to the driveway entry and constrained the widening of the proposed driveway. This took place during the period August to October 2022 whilst the proceedings were adjourned to enable the preparation of amended plans. The removal of the tree has allowed increased sight lines to the street from the driveway, resulting in improved vehicular and pedestrian safety. 11. The proposed ramped driveway access to the basement was flattened such that it is now generally at grade. The reduction in gradient of the driveway and the incorporation of a drive-through car lift providing vehicular access to both basements reduces the number of car stackers which would be required from two double stackers and one single stacker to one two car stacker to be used solely by the manager and a longer term resident, who would be trained in its safe use. The inclusion of the car lift has allowed access and egress to the lift in a forward direction and increases manoeuvrability within the basements. 12. These amendments to the driveway and carparking devices also now facilitate convenient transfer of all waste receptacles to the driveway apron and provide a level area to store them pending their emptying into a waste collection vehicle which can now be accommodated on the site without blocking the basement or causing traffic impact on Searl Road by queued vehicles which otherwise would have had to await the departure of the waste collection truck before entering the site. 13. With respect to landscaping, the parties' landscape experts reached agreement with respect to landscape changes, now reflected in the amended plans (Ex O). These amendments satisfied the landscape experts and the parties' planning experts that the outstanding landscape issues had been satisfactorily addressed and would now be likely to result in visual compatibility with the existing and future character of the area. 14. Expert acoustic reports commissioned by the applicant and considered by the respondent, together with a number of the proposed conditions, confirm that noise levels from the use of the development can achieve commonly accepted noise goals and result in minimal impact upon the amenity of neighbouring properties. 15. The parties' experts in planning, traffic, landscaping and civil engineering prepared joint primary and supplementary reports, which were tendered to the Court. Oral evidence by the planners, traffic experts and civil engineers further confirmed that they were satisfied, on the basis of the amended plans revision H (Ex N), the incorporation of a revised plan of management (Ex R) and the proposed conditions, that all issues between them had been satisfactorily resolved. They were also requested to comment upon the concerns of the residents expressed onsite and within the written objections, and each expert advised the Court, that in their opinion, the residents' objections had either been addressed by the amendments and factual evidence, or were not matters which required further consideration. As part of my determination of the proceedings, I have considered the expert evidence and the evidence of the residents given in both written and oral form. Jurisdictional pre-requisites 1. There are a number of jurisdictional pre-requisites that must be satisfied before the Court is able to exercise the functions reposed in it by s 4.16 of the EPA Act. The parties helpfully identified these in a joint jurisdictional statement (Ex 14). The matters of relevance and the parties' explanation as to the basis of their satisfaction are summarised below. I agree with the parties' joint position and am satisfied that development consent may be granted to the amended DA subject to the imposition of the agreed conditions which are proposed. Owner's consent 1. The applicant is the registered proprietor of the site. It has provided owner's consent to the lodgement of the DA. Public notification 1. The DA was notified in accordance with the respondent's notification policy in both its original and amended form. The submissions which were received have been considered by the respondent and the parties are satisfied that the contentions raised in those objections have been adequately considered and, where necessary, addressed by the DA and subsequent amendments. SSLEP 1. This is a relevant environmental planning instrument that applies to the site. As previously noted, this site is zoned R4 High Density Residential under the SSLEP and development for the purpose of a boarding house is permissible in that zone. 2. Clause 2.3 of SLEP requires the Court to have regard to the R4 zone objectives. They include 'to provide a variety of housing types within a high density residential environment'. The proposed boarding house responds to that objective and is consistent with the other relevant objectives of the zone. 3. The proposed development complies with all Pt 4 SSLEP standards including cl 4.3 of SSLEP, which sets a maximum height limit for the building at 16 m. The development will be in excess of 3 m below that limit. It is comfortably compliant with cl 4.4 of SSLEP which sets a maximum floor space limit of 1.2:1. Pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARHSEPP) a bonus of 0.5:1 applies to the development. Accordingly, the maximum permissible FSR is 1.7:1. The proposed development has an FSR of 1.296:1. 4. In respect of cl 5.10 of SSLEP the land is not a heritage item, not located in a heritage conservation area and there are no heritage items in close proximity to the land. 5. The development satisfies the requirements of cll 6.1, 6.2, 6.4, 6.14 and 6.17 of SSLEP which deal with acid sulfate soils, earthworks, stormwater management, landscaping and urban design. ARHSEPP 1. ARHSEPP applies to the land and to the development because it is for the purpose of a boarding house. 2. The development complies with the 'must not refuse consent' standards in cl 29 of ARHSEPP. These standards include FSR, height, landscaped area, solar access, private open space and accommodation size of each boarding room. The development provides 13 carparking spaces and is compliant with cl 29(2)(e) of ARHSEPP. All rooms will have a kitchenette and bathroom as permitted by cl 29(3) of ARHSEPP. 3. The development conforms to all relevant development standards in cl 30 as follows: 1. Clause 30(a) – Communal Room. The development has more than 5 boarding rooms and a communal room is provided on the third floor. 2. Clause 30(b) – Maximum Room Area. No boarding room excluding kitchen and bathroom will exceed 25 m2. 3. Clause 30(c) – Restriction on Number of Room Occupants. No boarding room will be occupied by more than 2 adult lodgers by operation of the plan of management. 4. Clause 30(d) – Bathroom and Kitchen Facilities. Adequate bathroom and kitchen facilities are provided for each lodger in each boarding room together with those facilities also being provided in the communal room on the ground floor. 5. Clause 30(e) – Boarding House Manager. The development is capable of accommodating 20 lodgers or more, so an on-site manager is required and is provided. 6. Clause 30(h) – Motorcycle and Bicycle Parking. The development provides for 25 boarding rooms for residents which requires 5 motorcycle spaces and 5 bicycle spaces which are provided in the basement. 1. Clause 30A requires the consent authority to consider whether the design of the development is compatible with the character of the local area. Following the amendments made during the proceedings the parties agree that the development complies with cl 30A. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) 1. SEPP Housing came into force on 26 November 2021 but contains a savings provision and does not apply to the subject development. State Environmental Planning Policy (Resilience and Hazards) 2021 (RHSEPP) 1. Section 4.6 of RHSEPP requires the consent authority must be satisfied that the land upon which the development is to be carried out is not contaminated. In the present case, the use of the site is proposed to remain residential and the parties are satisfied that there is no basis to refuse the development application because the site is not contaminated. Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment (REP2) 1. The provisions of REP2 have been taken into consideration and form no basis upon which to refuse the DA. State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) 1. Clause 102 of the ISEPP applies to development that is on land in or adjacent to a road corridor that has an annual average daily traffic volume of more than 20,000 vehicles. Although not directly adjoining the Kingsway, the land is identified on the respondent's Road and Rail Buffer Map. 2. Clause 102(2) provides "before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette." 3. Clause 102(3) provides if the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded— (a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time. 1. The DA, as amended, is supported by acoustic reports commissioned by the applicant which recommended mitigation measures to ensure noise levels to the dwellings meet the requirements contained in cl 102(3) of ISEPP. Those measures have been incorporated in the amendments and the proposed conditions where required. 2. The parties agree that the Court can be satisfied that the acoustic reports and recommendations have satisfactorily considered those relevant matters in ISEPP. SSDCP 2015 1. The parties agree that the Court can be satisfied that the DA, as amended, can be approved having regard to the provisions of SSDCP 2015. It is noted that a number of those provisions are inconsistent with similar provisions within ARHSEPP. Control and direction of the Panel 1. Pursuant to s 8.15(4) of the EPA Act the respondent is to notify the Panel of the appeal and is subject to the control and direction of the Panel in connection with conduct of the appeal. The Panel has instructed the respondent to enter into the proposed consent orders. Conclusion 1. I am satisfied upon the evidence that it is lawful and appropriate to accede to the parties' request and to make orders by consent, including to grant development consent to the DA, as amended, subject to conditions which are attached in Annexure 'A'. 2. I have carefully considered the public submissions made in respect of the proposal. These are contained in Exs 9, 11 and 16. I have also taken into consideration the oral evidence of the residents given on site and the written summary of that evidence recorded by the parties' legal representatives (Ex 17). I consider that the reasonable concerns raised in the submissions and the resident evidence have been appropriately addressed by the experts and the material provided in support of the proposed development, including the conditions of consent in Annexure 'A'. 3. In reaching my conclusion, I have given appropriate and substantial weight to the fact that both parties and their respective experts now support the DA in its amended form. 4. The Court notes: 1. On 15 July 2022, leave was granted to the applicant to rely on amended plans and reports subject to an order for the applicant to pay the respondent's costs thrown away in an amount as agreed or assessed pursuant to s 8.15(3) of the EPA Act; 2. On 10 October 2022, leave was granted to the applicant to rely on amended plans and reports subject to an order for the applicant to pay the respondent's costs thrown away in an amount as agreed or assessed pursuant to s 8.15(3) of the EPA Act; 3. The parties agree that the applicant is to pay the respondent the agreed sum of $32,500.00 in full and final settlement of all outstanding costs orders associated with this appeal payable within 28 days of these orders being made; 4. The plans and reports the subject of the 15 July 2022 leave were uploaded to the NSW Planning Portal on 19 July 2022 and an amended application filed on 21 July 2022; 5. The plans and reports the subject of the 10 October 2022 leave were uploaded to the NSW Planning Portal on 10 October 2022 and an amended application filed with the Court on 10 October 2022; and 6. An updated plan of management was uploaded to the NSW Planning Portal on 7 November 2022 and an amended application was filed with the Court on 8 November 2022. 1. The Court orders, by consent: 1. The appeal is upheld. 2. Development application DA 20/1122 for the demolition of existing structures, removal of trees and construction of a 4-storey boarding house containing 26 boarding rooms (inclusive of the manager's room) – 12 x double and 14 x single rooms for a maximum of 38 occupants over two levels of basement containing parking for 13 cars on land described as SP 14049 located at 24 Searl Road, Cronulla is determined by the grant of consent subject to the conditions in Annexure 'A'. 3. Exhibits A, N, O, R, 10 and 14 are retained. Exhibits B-M, P, Q, S and 1-9, 11-13 and 15-18 are returned. ……………………. C McEwen Acting Commissioner of the Court 20731.22 Annexure A (366316, 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: 24 November 2022