Land and Environment Court New South Wales Medium Neutral Citation: Young v Sutherland Shire Council [2023] NSWLEC 1119 Hearing dates: Conciliation conference on 7 March 2023 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA 22/0625 for the alterations and additions to the existing dwelling house at 5 Lugano Avenue, Burraneer NSW 2230 subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 4.15, 4.16 Environmental Planning and Assessment Regulation 2021, ss 61, 69 Home Building Act 1989 (NSW) Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sutherland Shire Local Environmental Plan 2015 cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17 Texts Cited: Standards Australia, Australian Standard AS 2601—2001: The Demolition of Structures (2001) Category: Principal judgment Parties: Troy Young (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Parrino (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/330540 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings arise as a result of the deemed refusal by Sutherland Shire Council (the Respondent) of Development Application No. 22/0625, which seeks consent for alterations and additions to an existing dwelling, and construction of an inground swimming pool, landscaping and other associated works at 23 Woodlands Road, Taren Point, lot 70 DP 6593 (the site). These Class 1 proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 March 2023. I presided over the conciliation conference. 3. 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. 4. 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 one 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 each has been satisfied and from this I note the following points: 1. Written landowner's consent has been provided with the Class 1 application. 2. The development application was appropriately notified by the Respondent, and one submission was received. This submission, which concerned privacy impacts, has been considered by the Respondent, and incorporated into additional privacy measures that will be required by condition of consent. 3. An amended BASIX certificate prepared by Contemporary Architecture Pty Ltd has been filed with the Court that relates to the development application as amended. 4. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated. The parties submit, and based on their desktop review, I accept that the historic use of the subject site has been residential with no change of use, and that the land is not likely to be contaminated. 5. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP) the proposed development is permissible with consent within the C4 Environmental Living Zone. 6. The proposal is consistent with all relevant development standards established by the SSLEP, including height of buildings (cl 4.3), floor space ratio (cl 4.4), and landscaped areas (cl 6.14). 7. Pursuant to SSLEP cl 5.10, the site does not contain a heritage item and is not located within a heritage conservation area. 8. The site is not identified as being in a Flood Planning Area pursuant to SSLEP cl 5.21. 9. The site is affected by class 5 acid sulfate soils and has a medium level of archaeological sensitivity. The parties submit and, based on the information contained in the Statement of Environmental Effects I accept that, as the majority of proposed alterations and additions sit within the existing developed area of the site, the proposal is considered suitable pursuant to the requirements of SSLEP cl 6.1. Furthermore, a condition of consent has been included to respond to any unexpected archaeological finds. 10. The required earthworks of the proposed development have been considered pursuant to the matters listed for consideration in SSLEP cl 6.2. The parties submit and, based on the plans before the court I accept that earthworks on the site are minimised and adequately satisfy the matters listed in subcl 6.2(3). 11. The application as amended is accompanied by appropriate stormwater plans which adequately satisfy the requirements of SSLEP cl 6.4. 12. The urban design matters set out in SSLEP cll 6.16 and 6.17 have been considered by the expert town planners in their assessment. From this, the parties submit and I accept that the requirements of these clauses have been satisfied. 13. Consideration of Australian Standard AS 2601—2001: The Demolition of Structures, as required pursuant to s 61 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), is addressed through condition 13 of the agreed conditions of consent. 14. Section 69 of the EPA Regulation requires consideration of both insurance requirements under the Home Building Act 1989 (NSW) and compliance requirements with the Building Code of Australia. Both of these matters are addressed via the prescribed conditions of consent. 15. Based on the information contained in the development application as amended and the parties' submissions, I accept that the relevant matters listed in s 4.15(1) of the EPA Act have been considered in the assessment of this development application and there are no issues that arise that would warrant the refusal of the application. 1. 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. 2. 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. The Court notes: 1. The Respondent agrees to the Applicant amending Development Application No. DA22/0625 pursuant to section 37(1) of the Environmental Planning & Assessment Regulation 2021, to include the following plans and documents, which were filed with the Court on 2 March 2023:- Plan number Reference Prepared by Date Job No 2021-25 DA01 Issue A Site Analysis/Detail Survey Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA02 Issue A Site Roof Plan Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA03 Issue A Lower Ground Floor Plan Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA04 Issue A Ground Floor Plan Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA05 Issue A First Floor Plan Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA06 Issue B Elevations Jamisa Architects Pty Ltd 06/2022 Job No 2021-25 DA07 Issue A Sections/Front Fence Elevation Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA08 Issue A Construction Management Concept Plan Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA09 Issue A FSR & Landscaped Area Calculations Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA10 Issue A Shadow Diagrams June 21 Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA11 Issue A Shadow Diagrams March/September 21 Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA12 Issue A Shadow Diagrams December 21 Jamisa Architects Pty Ltd 05/2022 Job No 2021-25 DA13 Issue B Landscape Plan Jamisa Architects Pty Ltd 06/2022 Height Blanket Diagrams Undated Sheet 1 issue A Finishes Schedule 01 Jamisa Architects Pty Ltd Undated Sheet 2 issue A Finishes Schedule 02 Jamisa Architects Pty Ltd Undated Sheet 3 issue A Finishes Schedule 03 Jamisa Architects Pty Ltd Undated Sheet 4 issue A Finishes Schedule 04 Jamisa Architects Pty Ltd Undated A1 sheet 1 issue A Concept Site Drainage and Erosion & Sediment Control Plan Garage Level CPM Engineering 7.2.23 A1 sheet 2 issue A Concept Site Drainage and Erosion & Sediment Control Plan Garage Level CPM Engineering 7.2.23 BASIX Certificate No A452362_03 Jamisa Architects Pty Ltd 1/03/2023 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA 22/0625 for the alterations and additions to the existing dwelling house at 5 Lugano Avenue, Burraneer NSW 2230 subject to the conditions contained in Annexure A. E Washington Acting Commissioner of the Court 330540.22. Annexure A 294239, 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: 16 March 2023