Land and Environment Court New South Wales Medium Neutral Citation: Keystone Elite Properties Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1445 Hearing dates: Conciliation conference on 13 June and 13 July 2023 Date of orders: 11 August 2023 Decision date: 11 August 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The Applicant is to pay those costs of the Respondent, thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $10,000. (2) The appeal is upheld. (3) Development Application No. DA21/0874, as amended, for demolition of the existing building and ancillary structures and construction of a four-storey residential flat building containing 16 apartments including 2 level basement carparking and associated landscaping at 9-11 Moani Avenue, Gymea, is determined by the grant of development consent, subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15(3) Land and Environment Court Act 1979, s 34. Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.4, 6.16, 6.17 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards), s 4.6 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (repealed) State Environmental Planning Policy (Biodiversity and Conservation) 2021 Texts Cited: Apartment Design Guide Category: Principal judgment Parties: Keystone Elite Properties Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/367521 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Keystone Elite Properties Pty Ltd (the Applicant) against the refusal, by Sutherland Shire Council (the Respondent), of Development Application No. DA 2021/0874 on 7 June 2022. 2. The application proposes the demolition of existing structures and the construction of a four-storey residential flat building containing 16 apartments over two levels of basement carparking with associated landscaping on the land at 9-11 Moani Avenue, Gymea NSW 2227. The proposed development is to be undertaken on land legally described as Lot 5 and 6 in DP 29614. 3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 June and 13 July 2023. 4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions. The agreement reached by the parties was based on amended plans and material, which were accepted by the Respondent, that resolved the contentions before the Court. 5. Pursuant to s 34(3) of the LEC Act of the LEC Act), I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned R4 High Density Residential wherein the proposed development is permitted with development consent. In determining the development application, I have had regard to the objectives of the zone. 2. The proposed development contravenes the development standard in cl 4.3 – Height of Buildings in the SSLEP 2015 which prescribes a maximum height of 16m. The parties agree that the proposed development stands at a maximum of 910mm above the height control. 1. The Applicant has provided a written request, prepared by BMAUrban, to vary this development standard. The parties agree that the written request is well founded and can be upheld. I have undertaken the required assessments set out by cl 4.6 of the SSLEP 2015 and agree with the position taken by the parties as described below. 2. The Applicant submitted a written request to vary the standard which notes the that the "proposed height breach ranges from 520mm to 840mm along the northern elevation and 705mm to 910mm along the southern" (p4, BMAUrban C4.6). I accept the opinions provided in the written request that demonstrate that the variation is acceptable because the written request has outlined how the proposal meets the underlying objectives of the development standard and adequately sets out the environmental planning grounds that justify the contravention of the development standard. 3. I am satisfied that the written request adequately addresses the matters set out in subcll 4.6(3)(a) and (b) thereby satisfying subcl 4.6(4)(a)(i) of the SSLEP 2015 and that the variation to the development standard is in the public interest. In this regard, I accept that the proposed Height of Building is in the public interest as it is consistent and compatible with the objectives of the development standard and the R4 zone in which the development is proposed to be carried out, thereby satisfying cl 4.6(4)(a)(ii). 1. The proposed development complies with the permitted floor space ratio pursuant to cl 4.4 of SSLEP 2015. 2. The requirements of cl 5.10 of SSLEP 2015 in respect to Heritage matters has been considered. The site is not identified as a heritage item nor is it located within a heritage conservation area. There are two local heritage items (Item No. 1507 – "Hazelhurst garden and grounds" & Item No. 1506 "Street plantings") near the site, along the Kingsway Motorway. The proposed development does not have any adverse impact on the items given the spatial separation. 3. The parties agree that the requirements of cl 6.2 of SSLEP 2015, in respect to Earthworks, that require the consent authority to have considered the matters in subcl (3) have been met. The Applicant has provided the following documents which consider the quality, volume and management of material to be excavated: 1. Construction Management Plan prepared by Cornerstone Design; 2. Waste Management Plan prepared by Cornerstone Design; and 3. Stormwater Plans prepared by United Civil Engineering. The conditions of consent, in Annexure A, require compliance with the above documents. I am satisfied the requirements of cl 6.2 of SSLEP 2015 have been met. 1. The requirements of cl 6.4 of SSLEP 2015 in respect to Stormwater Management, that require the consent authority to consider various matters, have been met. The various works required are outlined by the Applicant and considered by the Respondent. The parties agree that the stormwater plans are adequate, and where necessary, appropriate conditions ensuring the required outcomes are included in the development consent forming Annexure A. 2. The parties also agree that the matters raised in cl 6.16 (Urban Design - General) and cl 6.17 (Urban Design – Residential) of SSLEP 2015 have been met. The Applicant prepared an assessment which addressed each of these matters in detail and the parties agree with this assessment that the proposal is satisfactory. I agree with that assessment and that the process required by these clauses has been undertaken. 3. The development application was placed on exhibition from 4 October 2021. The parties are satisfied that the matters raised by the submitters have been adequately considered. 4. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 5. The Applicant has prepared a Design Verification Statement and a Compliance Table for the matters in State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP65). These documents assess the form of the proposed development against the design quality principles and Apartment Design Guide and conclude that the proposal is satisfactory. The parties agree with the outcomes of the assessment. I am satisfied that the assessment requirements of SEPP65 have been undertaken. 6. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The Applicant provided evidence that the site is not identified on the POEO register as being potentially contaminated, is not identified being affected by acid sulfate soils, and has been used for residential purposes since approximately 1943. The parties agree that the site is suitable for the proposed development and I am satisfied with these conclusions based on the material provided. 7. Consideration has been given to the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). On 1 March 2022, the Vegetation SEPP was repealed, and its provisions were transferred to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The proposed development seeks to remove 7 trees on the site. The parties agree that the removal of these trees is consistent with local planning objectives, having regard to the replacement planting as proposed in the landscaping strategy for the site. Conditions of consent have been imposed requiring the development to implement the landscaping as shown in the landscape plans. I am satisfied that the requirements of the Biodiversity SEPP have been met. 1. 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' agreement. 2. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is to pay those costs of the Respondent, thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $10,000. 2. The appeal is upheld. 3. Development Application No. DA21/0874, as amended, for demolition of the existing building and ancillary structures and construction of a four-storey residential flat building containing 16 apartments including 2 level basement carparking and associated landscaping at 9-11 Moani Avenue, Gymea, is determined by the grant of development consent, subject to the conditions set out in Annexure "A". Stuart Harding Acting Commissioner of the Court 367521.22 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: 11 August 2023