Land and Environment Court New South Wales Medium Neutral Citation: Taylor v Sutherland Shire Council [2023] NSWLEC 1334 Hearing dates: Conciliation conference on 5 & 6 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The Applicants' cl 4.6 submission written by K J Planning pursuant to cl 4.6 of Sutherland Shire Local Environment Plan 2015 (SSLEP 2015) to vary the floor space ratio development standard in cl 4.4 of SSLEP 2015 is upheld. (2) The Appeal is upheld. (3) Development Consent is granted to Development Application DA21/0998 for the demolition of the existing dwelling and structures and the construction of a new dwelling, swimming pool and associated landscaping at 3 Bogan Ave, Sylvania Waters, NSW subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – breach of Floor Space Ratio development standard – Clause 4.6 request to vary development standard – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.7, 6.14, 6.16, 6.17, Sch 5 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6 Environmental Planning and Assessment Regulation 2021, s 37 Category: Principal judgment Parties: Suzanne Mary Taylor (First Applicant) Garry Allan Taylor (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicants) J Amy (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicants) Sutherland Shire Council (Respondent) File Number(s): 2022/379636 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Sutherland Shire Council, of development application DA 21/0998 which seeks consent for the demolition of the existing dwelling and associated structures and the construction of a new dwelling, swimming pool, and associated landscaping at 3 Bogan Avenue, Sylvania Waters, legally known as Lot 8 in DP 217269. 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 5 and 6 June 2023. I presided over the conciliation conference. 4. After 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, and was based on an amended suite of documents which now constitute the amended development application. 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 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 as amended. 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 they have been satisfied. Based on the parties' joint submission and the information contained in the amended application, I am satisfied of the following matters of jurisdiction. 6. The land is zoned R2 Low Density Residential pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), and the proposed development meets the relevant objectives of this zone. 7. The applicants are the owners of the land that is the subject of the application. 8. The development application was appropriately notified between 13 October and 4 November 2021. The parties submit, and I accept that the relevant matters raised in the three submissions received have been adequately addressed. 9. State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the subject site, however the proposed development does not require the clearing of any native vegetation and the requirements of this SEPP are therefore met. 10. Pursuant to the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been issued that applies to the proposed development as amended. 11. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires the consent authority to consider whether the land that is the subject of the development application is contaminated. The parties submit and I accept that the land has historically been used for residential purposes, with no history to suggest any contamination, and is subsequently suitable for the proposed use. No further consideration under this section is required. 12. Pursuant to ss 2.10 and 2.11 of the Resilience and Hazards SEPP, the Structural Engineers Report prepared by CPM Engineering, dated 3 March 2023 (Structural Engineer's Report) states that the proposed development will not impact the existing sea wall fronting the Sylvania waterway. The parties further submit that based on the building and site design, and the construction management plan, there will be no adverse impacts on the items listed in ss 2.10 and 2.11 of the Resilience and Hazards SEPP, and that the requirements of these sections are met. 13. The SSLEP establishes a maximum permissible height of buildings of 8.5 metres (m) on the subject site. The proposed development as amended meets this development standard with a maximum height of 8.21m. 14. Pursuant to cl 4.4 of the SSLEP, the maximum floor space ratio (FSR) for a building on the subject site is 0.55:1. The development application as amended proposes an FSR of 0.71:1, which results from the inclusion of a basement in the proposed dwelling. SSLEP cl 4.6(3) requires a written request to justify the contravention of this development standard. This written request must demonstrate that compliance with the floor space ratio 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. To that end, the applicant has submitted a written request prepared by KJ Planning dated June 2023 (the written request). Pursuant to cl 4.6 of SSLEP, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R2 Low Density Residential Zone and the Floor Space Ratio development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties. 2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the floor space ratio limit is the result of flooding constraints on the site which elevate the ground floor level and therefore the basement 1m above ground, but despite this, the proposed dwelling is considered to be of an appropriate bulk and scale for the area. The non-compliance is not visible from the street, nor does it contribute to the bulk of the building in a substantial way when viewed from the waterway. The contravention is therefore justified by the appropriate design response to the constraints of the site, the lack of impact on the amenity of neighbouring residents, and the consistency of the building design with the streetscape. 3. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard. 1. Pursuant to SSLEP cl 5.10, development consent is required for any development that will impact a heritage item. The Sylvania Waters Canal, which the subject site adjoins, is listed as a local heritage item under SSLEP Sch 5. The proposed development does not seek to alter or otherwise impact this canal, and the Structural Engineers Report by CPM Engineering dated 30 March 2023 states that the proposed development can be undertaken without impacting the existing seawall. Subsequently, I am satisfied that the requirements of SSLEP cl 5.10 have been met. 2. Pursuant to SSLEP cl 6.1, the subject site is designated Class 2 on the Acid Sulfate Soils Map. In accordance with the relevant matters in cl 6.1(3), Acid Sulfate Soils Management Plan and a Dewatering Management Plan have been included in the amended application, which consider the presence of acid sulfate soils and the necessary management required to avoid impacting the adjacent canal and land. 3. The subject site is mapped as Environmentally Sensitive Land – Riparian Lands and Watercourses. Pursuant to the requirements of SSLEP cl 6.7, I must be satisfied that the development will not cause significant adverse environmental impact on the aspects of the watercourse listed in cl 6.7(3). The Structural Engineers Report states that the proposed development can be undertaken without any impact to the existing seawall and canal. Further, the parties submit, and I accept that the proposed development will have no adverse environmental impact on the watercourse or any aspect of it identified in this section. 4. The proposed development achieves 40.6% landscaped area, which exceeds the minimum requirement of 35% established under SSLEP cl 6.14. 5. The parties submit, and I accept that the urban design matters listed in SSLEP cl 6.16 have been considered in the assessment of this proposed development, and that the amended application represents an acceptable design and development outcome for the urban environment of the Sutherland Shire. 6. Further, the parties submit, and I accept that the matters relating to urban design for residential accommodation listed under SSLEP cl 6.17 have been considered, and the amended application is acceptable. 7. 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. 8. 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. 9. The Court notes: 1. Sutherland Shire Council, as the consent authority agrees under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its Development Application DA21/0998 to rely on the plans and documents specified in Condition 1 of Annexure A (Amended Application). 2. The Applicant filed the Amended Application with the Court on 5 June 2023. 1. The Court orders: 1. The Applicants' cl 4.6 submission written by K J Planning pursuant to cl 4.6 of Sutherland Shire Local Environment Plan 2015 (SSLEP 2015) to vary the floor space ratio development standard in cl 4.4 of SSLEP 2015 is upheld. 2. The Appeal is upheld. 3. Development Consent is granted to Development Application DA21/0998 for the demolition of the existing dwelling and structures and the construction of a new dwelling, swimming pool and associated landscaping at 3 Bogan Ave, Sylvania Waters, NSW subject to the conditions of consent at Annexure A. E Washington Acting Commissioner of the Court Annexure A (315168, 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: 29 June 2023