Land and Environment Court New South Wales Medium Neutral Citation: Dominelli v Sutherland Shire Council [2023] NSWLEC 1055 Hearing dates: Conciliation conference on 1 February 2023 Date of orders: 09 February 2023 Decision date: 09 February 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The cl 4.6 written request prepared by Urbanesque Planning dated 23 June 2022 for a variation to the height of building development standard under cl 4.3 of the Sutherland Shire Local Environmental Plan 2015 is upheld. (2) The appeal is upheld. (3) Development Application No. DA22/0708 in respect of 1A Yellambie Street, Yowie Bay for the demolition of existing structures, and construction of a new dwelling, boatshed and swimming pool is approved, subject to the conditions contained in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – dwelling house – clause 4.6 request to vary the height standard – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 64 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.4, 6.5, 6.7, 6.9, 6.16, 6.17 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Adam Dominelli (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: J Wauchope (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Dentons Australia Pty Ltd (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/257698 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of Sutherland Shire Council's deemed refusal of DA22/0708 which seeks development consent for the demolition of existing structures, tree removal and the construction of a new two-storey dwelling house, swimming pool and boatshed at Lot 20, DP 867857, 1A Yellambie Street, Yowie Bay. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 February 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 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 explained how the jurisdictional prerequisites have been satisfied. From these, I note the following points. Sutherland Shire Local Environmental Plan 2015 1. The site is located within the C3 Environmental Management Zone, within which development for the purposes of dwelling houses are permitted with consent. Further, the proposed development is consistent with the objectives of this zone. 2. The proposed development includes a breach of the 8.5 m height limit set by Sutherland Shire Local Environmental Plan 2015 (SSLEP) cl 4.3. This height limit forms a development standard which, pursuant to cl 4.6 requires a written request to vary. SSLEP Clause 4.6(3) requires a written request which demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. The applicant has submitted a written request prepared by Urbanesque Planning dated 30 June 2022. 3. SSLEP cl 4.6(4) states that development consent must not be granted for the development unless I am satisfied that the Applicant's written request adequately addresses the matters required under cl 4.6(3). It also requires me to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the height standard, and the objectives of the C3 Environmental Management Zone. 4. The parties submit and, based on the written request, I am satisfied that the written request adequately justifies the variance to the height of buildings development standard, and is in the public interest because: 1. The 1.55 m exceedance of the height standard is minor in nature, occurring in the roof form to the centre of the site and results from the sloping topography of the site. This exceedance does not cause any other non-compliance, and the dwelling is otherwise acceptable in terms of bulk and scale, view-loss, solar access and privacy. 2. The proposal is compatible with the character and amenity of the area and will not introduce and undesirable precedent to the locality. 3. The proposal is consistent with the relevant zone objectives, including: 1. not adversely impacting on the ecological, scientific, cultural or aesthetic values of the site and locality; 2. allowing a development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality; 3. limiting development in the waterfront so that the locality's natural qualities can dominate, and; 4. sharing views between new and existing development. 1. The proposal is consistent with the relevant objectives of the development standard, including: 1. being of a scale that is compatible with adjoining development, consistent with the desired scale and character of the street and locality, and that complements the landscape setting; 2. allowing reasonable daylight access to all buildings and the public domain; 3. minimising impacts on adjoining or nearby properties from loss of views and privacy, or overshadowing or visual intrusion, and; 4. minimising the visual impact of the building when viewed from adjoining properties, the street, waterways and public reserves. 1. I am further satisfied that pursuant to SSLEP cl 4.6(4)(b), under cl 64 of the Environmental Planning and Assessment Regulation 2000 concurrence of the Planning Secretary in relation to contravention of this development standard is assumed. Additionally, pursuant to SSLEP cl 4.6(5), from the parties' submissions and the written request I accept that the proposal does not raise any matter of significance for State or regional environmental planning, and that the public benefit of maintaining the development standard is not considered significant in the circumstances of this case. The breach of the height standard will not result in any significant impact on neighbouring buildings, landscape, or the zone. 2. For the above reasons, I am satisfied that the Applicant's written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and that there are sufficient environmental planning grounds to justify the proposed variation to the building height development standard. 3. The proposed development has a floor space ratio (FSR) of 0.42:1 which complies with the maximum FSR of 0.5:1 established under SSLEP cl 4.4. 4. Based on the Acid Sulfate Soils report and the parties' submissions I accept that, pursuant to SSLEP cl 6.1, an acid sulfate soils management plan is not required as the development will not disturb, expose or drain acid sulfate soils. Further, the proposed development is not likely to cause an adverse environmental impact on the waterway, native vegetation, fishing, aquaculture or urban and infrastructure activities. 5. The parties submit and I accept that the matters pertaining to earthworks set out in SSLEP cl 6.2 have been considered and, subject to the application of the conditions of consent in Annexure A, the development will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. 6. Pursuant to SSLEP cl 6.4, the parties submit and I accept that the proposed development will minimise any impacts of urban stormwater on land, native bushland and receiving waters. 7. The parties submit and I am satisfied that the matters for consideration in SSLEP cl 6.5 pertaining to terrestrial biodiversity and that the development is designed, sited and will be managed to avoid any significant adverse environmental impact. 8. Pursuant to SSLEP cl 6.7, the parties submit, and I accept that the proposed development will not have an adverse impact on water quality within the watercourse or aquatic species, habitats and ecosystems of the watercourse. 9. Pursuant to SSLEP cl 6.9, the demolition of the existing and construction of the new boatshed is permissible with consent. The parties submit and I am satisfied that the matters listed under subcll 6.9(3) and (4) have been considered and the development is acceptable in terms of foreshore development. 10. The parties submit and I accept that the matters listed under SSLEP cll 6.16 Urban Design – general and 6.17 Urban Design – residential accommodation have been considered in the assessment of the development application. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. A BASIX certificate has been provided that applies to the development. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Pursuant to the requirements of ss 2.10 and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the parties submit and I accept that the likely impact of the proposed development on the matters listed in subss 2.10(1) and 2.11(1) have been considered, and I am satisfied that the development is designed, sited and will be managed to avoid an adverse impact on any of the items referred to in subss 2.10(1) and 2.11(1). State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Pursuant to State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2, vegetation must not be cleared on this land without the necessary permit. Sutherland Shire Development Control Plan 2015 Chapter 39 Part 4 specifies the trees for which a permit is required to clear and pursuant to this, the necessary consent for the removal of the requested 13 trees is requested and may be granted under this development application. 2. For these reasons, 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. 3. As the parties' decision is one 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 this decision. 4. The Court notes: 1. that the Applicant has amended Development Application No DA22/0708 with the agreement of Sutherland Shire Council (pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021) as the relevant consent authority to incorporate the following amended plans and documents: Document Prepared by Date Addendum to Statement of Environmental Effects Urbanesque Planning 9.11.2022 Addendum to Arboricultural Impact Assessment Report Jacksons Nature Works 16.11.2022 Acid Sulphate Assessment Australian Geoenviro 20.01.2023 Amended Landscape Plan • Cover Sheet, Sheet no. L-01, Revision F • Level 1 Sheet 1, Sheet no. L-02, Revision F • Level 1 Planting Sheet 1, Sheet no. L-02.1, Revision F • Level 1 Sheet 2, Sheet no. L-03, Revision F • Level 1 Planting Sheet 2, Sheet no. L-03.1, Revision F Site Design + Studios 2.12.2022 • Ground, Sheet no. L-04, Revision F • Ground Planting, Sheet no. L-04.1, Revision F • Planting Details, Sheet no. L-05, Revision F • Notes & Specification, Sheet no. L-06, Revision F • Foreshore Landscape Notes, Sheet no. L-07, Revision F Amended Architectural Plans • Site Plan, Sheet no. 1, Revision C • First Floor Plan & Storeroom Floor Plan, Sheet no. 2, Revision C • Ground Floor Plan, Pool Equip. & Plant Room Floor Plan, Sheet 3, Revision C • Boatshed Plans, Sheet 4, Revision C • Elevations 01, Sheet 5, Revision C Innovate Architects 18.01.2022 • Elevations 02, Sheet 6, Revision C • Sections & Height Plane Diagrams, Sheet 7, Revision C • Shadow Diagrams, Sheet 9, Revision C • Calculations, Sheet 10, Revision C • Loggia Details, Sheet 12, Revision C • Reference Imagery, Sheet 13, Revision C ("Amended Development Application"). 1. that the Applicant has lodged the Amended Development Application with the Court on 23 January 2023. 1. The Court orders: 1. The cl 4.6 written request prepared by Urbanesque Planning dated 23 June 2022 for a variation to the height of building development standard under cl 4.3 of the Sutherland Shire Local Environmental Plan 2015 is upheld. 2. The appeal is upheld. 3. Development Application No. DA22/0708 in respect of 1A Yellambie Street, Yowie Bay for the demolition of existing structures, and construction of a new dwelling, boatshed and swimming pool is approved, subject to the conditions contained in Annexure "A". ………………………. E Washington Acting Commissioner of the Court Annexure A (260108, 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: 09 February 2023