Land and Environment Court New South Wales Medium Neutral Citation: Greenley (NSW) Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1054 Hearing dates: Conciliation Conference 25 and 30 January 2023 Date of orders: 09 February 2023 Decision date: 09 February 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development Application No. DA22/0690 in respect of 2 Hill Street, Woolooware for the demolition of existing structures and construction of four dwellings to form a multi dwelling housing development with basement carparking and strata subdivision is determined by the grant of consent, subject to the conditions contained in Annexure "A". (3) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 in the agreed amount of $4,000. Catchwords: DEVELOPMENT APPEAL – multi-dwelling housing – landscaping – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, Pt 4, ss 4.16, 8.7, 8.15 Environmental Planning & Assessment Regulation 2021, s 37Land and Environment Court Act 1979, ss 17, 34 Local Land Services Act 2013, s 60O State Environmental Planning Policy (Biodiversity & Conservation) 2021, Ch 2, s 2.7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.21, 6.1, 6.2, 6.14 Cases Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Greenley (NSW) Pty Ltd ACN 600 136 601 (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: S Dimarco (Solicitor)(Applicant) J Amy (Solicitor)(Respondent) Solicitors: Dimarco Lawyers Pty Ltd (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/299522 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA 22/0690 for demolition of existing structures and construction of four dwellings to form a multi dwelling housing development with strata subdivision (the Proposed Development) at 2 Hill Street, Woolooware legally described as Lot A in DP 328267 (the Site). 2. The Court may dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). As such, the Court assumes the role of consent authority. 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 25 and 30 January 2023. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. 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 making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I have considered and summarise below. 8. The Site currently contains an existing dwelling house and the registered proprietor of the Site is 2 Hill Street Pty Ltd ATF 2 Hill Street Unit Trust. Owner's consent has been provided with the development application. The Site is zoned R2 – Low Density Residential pursuant to the Sutherland Shire Local Environment Plan 2015 (SSLEP) and 'multi-dwelling housing' is permitted within this zone with development consent in accordance with the Land Use Table in the SSLEP. 9. The DA was appropriately notified by the Respondent pursuant to the EPA Act and Sutherland Shire Development Control Plan 2015 – Neighbourhood notification. Notification took place between 7 September 2022 – 23 September 2022 and one submission was received in response to the notification. The parties agree that the matters raised have been adequately addressed through the amended plans and conditions imposed on the development consent. 10. The Class 1 application was lodged on 7 October 2022 after the introduction of the Environmental Planning & Assessment Regulation 2021, in which s 37(7) simply allows the Applicant to file its amended DA with the Land & Environment Court. The Applicant's amending documents have been filed with the Court on 25 January 2023. 11. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. A search of council's Geographic Information System (GIS) has revealed no indication that the land is contaminated nor potentially contaminated. The parties are satisfied that the proposed development does not require further investigation and is suitable for the proposed residential development. 12. I am satisfied that the Site is suitable for the Proposed Development, pursuant to s 4.6 of the Resilience & Hazards SEPP. 13. An amended BASIX Certificate No. 1299940M_02 Issued by BCA Energy dated 2 June 2022 confirming the Proposed Development will meet the NSW Government's requirements for sustainability as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). The Court is satisfied that the Proposed Development, as amended, meets BASIX requirements. 14. Section 2.7(1) of the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity & Conservation SEPP) provides as follows: (1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B. 1. Section 60O of the Local Land Services Act 2013 (NSW) authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act. On that basis, in the present case the effect of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) and now Ch 2 of the Biodiversity & Conservation SEPP is overcome due to the need for development consent under Pt 4 of the EPA Act. 2. There are various relevant provisions of the SSLEP which are addressed below. 3. The objectives of the R2 low density residential zone as set out in the SSLEP are not jurisdictional pre-requisites to the granting of consent, however the parties agree that the Proposed Development in its amended format meets the zone objectives. 4. The Site is affected by a height development standard of 8.5m pursuant to cl 4.3 of the SSLEP. The Proposed Development complies with the height of buildings development standard, as indicated on Architectural Plan 1310 – Height Plane Diagram. 5. The proposed development is subject to a development standard in relation to floor space ratio (FSR) of 0.55:1 pursuant to cl 4.4 of the SSLEP. The proposed development complies with the FSR development standard, as indicated on Architectural Plan 1501 – Development Calculations. 6. The Site is not identified on Council's Flood Planning Map and accordingly the Proposed Development does not engage the provisions of cl 5.21 of the SSLEP. 7. Clause 6.1 of the SSLEP requires development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. With respect to the Proposed Development the Site is mapped as 'Class 5 Land'. The Statement of Environmental Effects filed with the Class 1 Application at pages 34 and 46 states: "...given the nature of the earthworks proposed, it is not considered that an Acid Sulfate Soils Management Plan is necessary." 1. Clause 6.2 of the SSLEP requires various matters to be taken into consideration in determining whether to grant consent for earthworks. The Proposed Development includes a regular basement with appropriate boundary setbacks and the excavation is minimised due to the topography of the land sloping from the street to the rear. 2. The Court is satisfied that the relevant matters to be considered under cl 6.2 of the SSLEP with respect to earthworks have been addressed. 3. The Proposed Development is subject to a minimum landscape area development standard of 35% of the Site pursuant to cl 6.14 of the SSLEP which is complied with as indicated on Architectural Plan 1501 – Development Calculations. 4. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out above. 5. 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. Notations: 1. The Court notes that: 1. The Applicant has amended Development Application No DA22/0690 with the agreement of Sutherland Shire Council (pursuant to cl 37 of the Environmental Planning and Assessment Regulation 2021) as the relevant consent authority to incorporate the following amended plans and documents: Plan number Reference Prepared by Date Architectural Plans DA1001 Rev B Site Plan Retallack Thompson & Joseph Grech 6/12/2022 DA1101 Rev B Proposed Lower Ground Plan Retallack Thompson & Joseph Grech 6/12/2022 DA1102 Rev B Proposed Ground Floor Plan Retallack Thompson & Joseph Grech 6/12/2022 DA1103 Rev B Proposed First Floor Plan Retallack Thompson & Joseph Grech 6/12/2022 DA1104 Rev B Proposed Roof Plan Retallack Thompson & Joseph Grech 6/12/2022 DA1201 Rev B Sections Retallack Thompson & Joseph Grech 6/12/2022 DA1202 Rev B Sections Retallack Thompson & Joseph Grech 6/12/2022 DA1203 Rev B Sections Retallack Thompson & Joseph Grech 6/12/2022 DA1301 Rev B Elevations Retallack Thompson & Joseph Grech 6/12/2022 DA1302 Rev B Elevations Retallack Thompson & Joseph Grech 6/12/2022 DA1303 Rev B Elevations Retallack Thompson & Joseph Grech 6/12/2022 DA1304 Rev B Elevations Retallack Thompson & Joseph Grech 6/12/2022 DA1305 Rev B Elevations Retallack Thompson & Joseph Grech 6/12/2022 DA1310 Rev AEIGHT Height Plane Study Retallack Thompson & Joseph Grech 26/5/2022 DA1401-1403 Rev B Shadow Diagrams Retallack Thompson & Joseph Grech 6/12/2022 DA1410-1411 Rev B Solar Analysis Retallack Thompson & Joseph Grech 6/12/2022 DA1501 Rev B Development Calculations Retallack Thompson & Joseph Grech 6/12/2022 Landscape Plans L-01 F Cover Sheet Site Design + Studios 6/12/2022 L-02.1 F Landscape Plan Ground Site Design + Studios 6/12/2022 L-02.2 F Planting Plan Ground Site Design + Studios 6/12/2022 L-03.1 F Landscape Plan Lower Ground Site Design + Studios 6/12/2022 L-03.2 F Planting Plan Lower Ground Site Design + Studios 6/12/2022 L-04 F Planting Details Site Design + Studios 6/12/2022 L-05 F Existing Tree Site Design + Studios 6/12/2022 L-06 F Notes Site Design + Studios 6/12/2022 L-07 F Specification Site Design + Studios 6/12/2022 Stormwater Plans Sheet 1 of 5 A Cover Sheet CPM Engineering 6/12/2022 Sheet 2 of 5 A Concept Site Drainage and Erosion and Sediment Control Plan Lower Ground / Basement Level CPM Engineering 6/12/2022 Sheet 3 of 5 A Concept Site Drainage and Erosion and Sediment Control Plan Upper Ground Level CPM Engineering 6/12/2022 Sheet 4 of 5 A Concept Site Drainage and Erosion and Sediment Control Plan First Floor/Roof Level CPM Engineering 6/12/2022 Sheet 5 of 5 A Plan of downstream drainage works CPM Engineering 6/12/2022 Construction Management Plan DA1002 Rev B Construction Management Plan Retallack Thompson & Joseph Grech 6/12/2022 Strata Subdivision Plan DA1502 Rev B Strata Subdivision Plan Retallack Thompson & Joseph Grech 6/12/2022 ("Amended Development Application"). 1. The Applicant has filed the Amended Development Application with the Court on 25 January 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development Application No. DA22/0690 in respect of 2 Hill Street, Woolooware for the demolition of existing structures and construction of four dwellings to form a multi dwelling housing development with basement carparking and strata subdivision is determined by the grant of consent, subject to the conditions contained in Annexure "A". 3. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 in the agreed amount of $4,000. E Espinosa 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: 09 February 2023