Land and Environment Court New South Wales Medium Neutral Citation: Nelson v Sutherland Shire Council [2023] NSWLEC 1515 Hearing dates: Conciliation conference held on 6 - 7 September 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA22/0443, as amended, seeking demolition of existing structures and construction of attached dual occupancy dwellings with Torrens title subdivision, landscaping and associated engineering works on Lot 13 Deposited Plan 14812, also known as 37 Engadine Avenue, Engadine is determined by the grant of consent, and subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – construction of a new attached dwellings – appropriate stormwater management – conciliation conference conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 37 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sutherland Shire Local Environmental Plan 2015, cll 2.3, 6.4 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Ella May Nelson (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/124012 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against deferred commencement conditions imposed by the Sutherland Shire Council (the Council) in the consent of Development Application DA22/0443 seeking demolition of existing structures and construction of attached dual occupancy dwellings with Torrens title subdivision, landscaping and associated engineering works on Lot 13 Deposited Plan 14812, also known as 37 Engadine Avenue, Engadine (hereafter the site). Background 1. Development Application DA22/0443 (the application) was lodged with Council on 11 April 2022, with three written submissions received during the notification period. The application was granted consent on 21 October 2022, with conditions of consent, including the following deferred commencement conditions: "1. Stormwater Drainage (ENG5015) A. Design The stormwater drainage system must be designed in accordance with Australian Standard AS3500.3:2015; the BASIX Certificate issued for this development and Sutherland Shire Environmental Specification - Stormwater Management, except where modified by the following: i) A detailed drainage design supported by drainage calculations must demonstrate the management of stormwater flow / discharge for all events up to the 100 ARI storm event. This must include roof gutters / downpipes and inground drainage lines and the on-site detention system. ii) The rate of discharge of stormwater from the site to a drainage system under Council's control must be controlled so that it does not exceed the predevelopment rate of discharge. Any required on-site detention facility must be designed to cater for all storm events up to the Recurrence Interval of 1 in 100 years. iii) All levels reduced to Australian Height Datum. iv) The required pipeline within the Mcalister Avenue footpath verge must be a hot dipped galvanised steel hollow section with a minimum wall thickness of 4mm, maximum section width of 125mm and a maximum section height of 75mm. v) The discharge from the site must be directed to the Mcalister Avenue kerb and gutter via a private drainage easement (easement to drain water), inclusive of a pipeline/s and ancillary infrastructure such as pits, etc. vi) An inspection pit/150mm rodding opening with screw cap lid must be provided at the property boundary between Mcalister Avenue (wholly located drainage easement within the private property) to facilitate maintenance of the pipeline. Details listed above must be included in documentation submitted to satisfy the Deferred Commencement Development consent. Upon satisfaction of the details required above, Council shall issue an approval consistent with the Conditions in Part 2, and any conditions reasonably arising from consideration of the details submitted to satisfy the deferred commencement." 1. The applicant appealed against the deferred commencement conditions in the consent, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person. Four residents provided oral submissions, with some allowing a view of their properties, during the conciliation. 3. The Council agreed for the applicant to amend the plans and documents that support the application, pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 4. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and that the issues raised by the adjoining residents have been considered. The deferred commencement conditions, the subject of the appeal, have been addressed by amendments to the stormwater design and management. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA22/0443, subject to conditions in Annexure A. Jurisdictional prerequisites 1. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied: 1. Sutherland Shire Local Environmental Plan 2015 (SSLEP): 1. Pursuant to cl 2.3 of the SSLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone. 2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the SSLEP. 3. The contentions relevant to the appeal relate to drainage, which engages cl 6.4 of the SSLEP. The amended stormwater design and management addresses this provision, resolved by amended plans that demonstrate appropriate drainage of stormwater to the street and onsite management of rainwater. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004: 1. A BASIX Certificate (1294197S) issued on 1 April 2022 is relevant to the proposed development, as amended, and is identified in the conditions of consent. 1. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience): 1. The site has historically been used as a residence and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience. The conditions of consent address any unexpected finds. 1. Sutherland Shire Development Control Plan 2015 (SSDCP): 1. The relevant requirements of the SSDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the SSDCP, and the three submissions received have been considered in the Council's merit assessment of the application, and where appropriate, issues are addressed by amendments to the application and conditions of consent. 2. The Council agrees that the requirements that relate to the SSDCP are resolved by amendments to the application and provision of documents that support the application. The flooding issue raised by the adjoining residents is primarily a broader catchment wide issue that is beyond the scope of the appeal. The Council have undertaken an appropriate merit assessment of the proposed development as it relates to flooding related to the site. The proposed development is assessed as not causing adverse flood impacts to adjoining properties. 1. Pursuant to s 23 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application. Grant of consent 1. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought. 2. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submission. 3. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA22/0443 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act. 4. As the parties' agreement 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. 5. The Court notes that: 1. The Sutherland Shire Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant to amend Development Application DA22/0443, as described below: No. Document Date 1. Plan of Site Drainage Works prepared by CPM Engineering Pty Ltd (Rev B) 7 September 2023 2. Stormwater Design Rationale Report prepared by CPM Engineering Pty Ltd 6 September 2023 1. The applicant has filed the plans and material that amend Development Application DA22/0443 with the Court on 7 September 2023. 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA22/0443, as amended, seeking demolition of existing structures and construction of attached dual occupancy dwellings with Torrens title subdivision, landscaping and associated engineering works on Lot 13 Deposited Plan 14812, also known as 37 Engadine Avenue, Engadine is determined by the grant of consent, and subject to the conditions set out in Annexure A. S Bish 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: 12 September 2023