Land and Environment Court New South Wales Medium Neutral Citation: Whitfield v Sutherland Shire Council [2023] NSWLEC 1520 Hearing dates: Conciliation Conference 14 July, 7 and 10 August 2023 Date of orders: 15 September 2023 Decision date: 15 September 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA22/0063, as amended, for alterations and additions to an existing dwelling house and construction of two swimming pools at land identified as Lot 2 in Deposited Plan 1251699, known as 696A Port Hacking Road, Dolans Bay NSW 2229, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – residential development - alterations and additions –construction of a swimming pool in the foreshore area – conciliation conference – agreement between the parties - orders Legislation Cited: Coastal Management Act 2016 Environmental Planning and Assessment Act 1979, ss 1.4, 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10,2.11, 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.4, 6.7, 6.9, 6.14 Cases Cited: Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49 Canterbury Bankstown Council v Dib [2022] NSWLEC 79 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Richard Whitfield (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: D Loether (Solicitor)(Applicant) J Amy (Solicitor)(Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 23/39121 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. DA22/0063 for alterations and additions to an existing dwelling house and construction of two swimming pools (the Proposed Development) at 696A Port Hacking Road, Dolans Bay NSW 2229 legally described as Lot 2 in Deposited Plan 1251699 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 July, 7 and 10 August 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 a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. 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 to be the terms of cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) regarding the contravention of a development standard, cl 6.4 of the SSLEP regarding stormwater management and cl 6.7 of the SSLEP regarding environmentally sensitive land. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement from which I have adopted and set out my reasons below as to how each jurisdictional prerequisite has been satisfied. 7. Compliance with the SSLEP is generally addressed in the Statement of Environmental Effects (SEE) filed by the Applicant with the Class 1 Application on 6 February 2023. The relevant jurisdictional provisions are addressed below. 8. The Site is zoned C4 Environmental Living pursuant to the SSLEP and development for the purposes of works to a dwelling house is permissible with consent in the C4 zone. 9. The Site is subject to a maximum building height of 8.5m pursuant to cl 4.3 of the SSLEP. I have referred to the Sections Drawing, prepared by Couvaras Architects, Issue H, dated 7 June 2023, Sheet 10 and the Height Plane Diagram Issue H, dated 7 June 2023, Sheet 27 both filed with the amended architectural plans on 8 August 2023. I am satisfied on the material filed with the Court that the Proposed Development, does not exceed the maximum building height of 8.5m above the natural ground level. 10. The Site is subject to a floor space ratio of 0.5:1 pursuant to cl 4.4 of the SSLEP and I am satisfied that the Proposed Development complies with the development standard with a floor space ratio of 0.499:1. 11. The terms of cl 5.10 of the SSLEP regarding heritage conservation have been considered by the Respondent's inhouse heritage officer to the extent that the proposed works will not have any adverse impact on the adjoining heritage item at No. 698 Port Hacking Road, given the separation distance and view lines from the street and from the waterway and public domain. 12. The Respondent informs the Court that it has considered the relevant earthworks provisions contained in cl 6.2(3) of the SSLEP. By way of explanation the parties advise the Court that the Proposed Development, as amended, proposes excavation works that minimise disruption on drainage patterns and soil stability, does not affect the future use or redevelopment of land, minimises impacts on waterways and minimises any effect on amenity of adjoining properties. The parties also advise that the proposed excavation works are compliant with controls 1.2.5a, 3.2.2 and 3.2.5 of the Sutherland Shire Development Control Plan 2015 (SSDCP) for dwellings in the C4 zone. The proposed excavation works are comparable to the excavation from the existing dwelling on the Site and are required for land sloping to a waterfront. 13. Clause 6.4(3) of the SSLEP relates to stormwater management and requires a consent authority to be satisfied, prior to granting development consent, that the development: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. The Proposed Development, as amended, demonstrates that the development is designed to maximise the use of water permeable surfaces on the land and avoid any significant adverse impacts of stormwater runoff on adjoining properties and receiving waters. I have considered the Stormwater Plan filed with the Application Class 1 behind tab 13(t) and I am satisfied that connection to the existing drainage system is acceptable. 2. The Site is mapped on the relevant riparian lands and watercourses map under the SSLEP and is identified as environmentally sensitive land. The consent authority must consider matters at cl 6.7(3) and must be satisfied of the matters at cl 6.7(4) which requires the consent authority to be satisfied that: …. (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact 1. I am satisfied that the Proposed Development, as amended, demonstrates that the proposed works are clear of any watercourses or drainage channels at the Site, the development will not have any adverse impact on water quality and flows within the watercourse. I am also satisfied that the Proposed Development is designed and sited above the Mean High Water Mark (MHWM) to avoid any significant adverse environmental impacts and will be managed to minimise any impacts. 2. The Site is mapped within the Foreshore Area (FA) affected by the Foreshore Building Line (FBL) which represents the landward extent of the SSLEP's mapped FA and therefore the provisions of cl 6.9 of the SSLEP regarding limited development on foreshore area are applicable. A swimming pool below the FBL is part of the Proposed Development and cl 6.9(2)(c)(vi) permits swimming pools below the FBL where they do not adversely impact on the natural landform and are no greater than 300mm in height above ground level. The proposed swimming pool seeks variation of 1.24m above the former ground level of the Site, a variation of 940mm above the permitted 300mm. The Applicant relies on a written request prepared by Avenue Town Planning pursuant to cl 4.6 of the SSLEP seeking to justify the contravention of the development standard in cl 6.9(2)(c)(vi) regarding height of a swimming pool above ground level. 3. The development standard is expressed in cl 6.9 of the SSLEP as follows: 6.9 Limited development on foreshore area (2) Development consent must not be granted to development on land in the foreshore area except for the following purposes— (a) the alteration of, or additions to, residential accommodation, or the demolition of existing residential accommodation and the erection of new residential accommodation on the land, if the footprint of the residential accommodation will not extend further forward of the foreshore building line than the footprint of the existing residential accommodation, (b) the erection of new residential accommodation if there is no reasonable alternative location for the residential accommodation outside the foreshore area, (c) development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area— (i) boat sheds, (ii) jetties, (iii) landscaped areas, (iv) sea retaining walls, (v) slipways, (vi) swimming pools (that are no higher than 300 millimetres above ground level), (vii) water recreation structures, (viii) waterway access stairs, (ix) inclinators, (d) the erection of a building in the foreshore area (other than a building referred to in paragraph (a), (b) or (c)), if the levels, depth or other exceptional features of the site make it appropriate to do so. 1. The Court is satisfied that cl 6.9(2)(vi) of the SSLEP is a development standard capable of variation because it falls within the definition of 'development standard' as defined in s 1.4(1) of the EPA Act in that it relates to the carrying out of development and specifies requirements or sets standards in respect of an aspect of development. Clause 6.9(2)(c)(vi) is a development standard pursuant to s 1.4(1)(c) of the EPA Act in that it sets criteria in respect of the "the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance" of a swimming pool in the FA. 2. The purpose of cl 6.9(2)(c)(vi) of the SSLEP is not to prohibit the development of swimming pools in the FA rather it permits or enables such development when certain criteria are met, satisfying the two-step test for 'development standards' set out by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270. The two-step approach of Giles JA in Poynting involves: 1. Determining whether a proposal is prohibited under any circumstances by the relevant provision (construed in context of the instrument as a whole); and 2. If it is not so prohibited, determining whether the relevant provision specified a requirement or fixes a standard in relation to an aspect of the proposed development. 1. Clause 6.9(2)(c)(vi) when read in the context of the SSLEP as a whole, does not prohibit the development of swimming pools in the FA in any circumstances, rather, the clause enables swimming pools and sets a standard in relation to height which permits such developments if the standard is met. 2. In the matter of Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49, Pepper J was considering the decision of the Court in the matter of Canterbury Bankstown Council v Dib [2022] NSWLEC 79. Pepper J states at par [100] as follows: "100. In Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Mahoney JA noted that there is a distinction between a provision in the form of "on land of characteristic X no development may be carried out" and one that says "on such land development may be carried out in a particular way or to a particular extent" (at 234). While the former is not a development standard, the latter is." 1. In the matter of Canterbury Bankstown Council v Dib [2022] NSWLEC 79 Preston CJ states at par [66] as follows: "66. …The test of whether provisions of an environmental planning instrument are development standards or not is simply whether they are "provisions in relation to the carrying out of development" and "provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development". If the provisions answer those descriptions, they will be development standards regardless of whether or not the provisions do so by including a jurisdictional fact." 1. I am satisfied that cl 6.9(2)(c)(vi) of the SSLEP specifies the circumstances in which the consent authority can grant consent to a development, i.e., a swimming pool in the foreshore area and that the height of 300mm above ground level is a provision in relation to the carrying out of development in the foreshore area, namely constructing a swimming pool, and this height is a requirement or standard fixed by the SSLEP, therefore it is a development standard and the contravention of it is capable of being justified by way os a written request pursuant to cl 4.6 of the SSLEP. 2. Further, cl 6.9(2) of the SSLEP is phrased using the same language as cl 4.1A of the SSLEP in relation to minimum subdivision requirements in certain zones, the clause starts 'Development consent must not be granted …'. Clause 4.1A similarly is a development standard setting requirements or standards for subdivisions in particular zones. 3. This approach has been consistently applied by Council in other unrelated development applications. 4. The proposed swimming pool design is consistent with the objectives of limited development on FA and with the objectives of the C4 zone. The pool height will not be visually obvious when viewed from the adjacent waterway, it is well separated from the median high water mark and is located close to the dwelling, will be concealed by landscaping within the FA, will have no adverse impact on existing natural foreshore processes or negatively affect the amenity of the area, and will have no impact on public access to the foreshore area. 5. The proposed access stairs have been amended and are consistent with the objectives of limited development on FA and with the objectives of the C4 zone. The stairs portion within the FA are sited to meander across the property and they've been designed with landscaping between timber sleepers to minimise adverse visual and amenity impacts when viewed from adjacent land and waterways. The existing boundary fencing and hedge planting minimise any adverse visual impact of the proposed access stairs when viewed from adjacent properties. 6. The proposed access stairs are permissible as waterway access stairs, and they are more sensitively designed and consistent with the length of stairs on nearby properties. The proposed swimming pool and access stairs are consistent with many built structures in the neighbouring FA, as detailed in Figure 1 of the Applicant's SOFAC. 7. The Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 6.9(2)(c) of the SSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SSLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 8. The Site is subject to a minimum 40% landscaped area pursuant to cl 6.14 of the SSLEP. The Proposed Development provides 40.1% landscaped area or 444m2 of landscaped area as depicted in Sheet 17 Issue H of the Architectural Plans filed by the Applicant on 8 August 2023. 9. There are a number of relevant provisions in the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) relevant to the Proposed Development on the Site. Firstly, Ch 2 Coastal Management is relevant because the Site is land identified as being within the 'coastal environment area' and 'coastal use area' on the Resilience and Hazards SEPP map, and therefore, also the coastal zone for the purposes of the Coastal Management Act 2016. 10. The consent authority must consider and be satisfied of the matters at ss 2.10 and 2.11 of the Resilience and Hazards SEPP. Development consent must not be granted to development on land within the coastal environment area and coastal use area unless the consent authority is satisfied that: 1. The proposed development will have minimal impact on coastal environmental values; and 2. The proposed development will have minimal impact on the visual amenity and scenic qualities of the coast and foreshore area. 1. The Proposed Development, as amended, will not impact on access to and along the foreshore, will not impact on views or wind tunnelling from a public area and is consistent with the local character and range of neighbouring dwellings within the immediate foreshore context of the site. 2. Clause 4.6 of the Resilience and Hazards SEPP relates to contamination of land and requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. 3. The Court is satisfied that consent can be granted because the Site has a long history of residential use and there is no other known use. The parties consider that there are no reasons to suspect that the Site is contaminated or requires any remediation works and rely on the SEE at page 14. 4. The Proposed Development for a separate dwelling house is BASIX affected development pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021. The DA is accompanied by BASIX Certificate No. A428287_02 prepared in accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and which shows that the proposal achieves the minimum performance levels/targets associated with water, energy and thermal efficiency. The parties are satisfied that the proposal addresses the requirements of the BASIX SEPP. 5. 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. I adopt the reasons given by the parties as set out above in this judgment. 6. 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. Notations: 1. The Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has approved the amendment of the development application under s 38(1) of the Environmental Planning and Assessment Regulation 2021, for Development Application No. DA22/0063 to be amended by the substitution of the following amended plans and documents (Amended Plans): 1. The following amended architectural plans prepared by Couvaras Architects: Drawing Title Sheet No. Issue Date Amended Cover Sheet 00 H 07/06/2023 Site Analysis 01 H 07/06/2023 Site Plan 02 H 07/06/2023 Level 2 Garage Floor 03 H 07/06/2023 Level 1 Bedroom Floor 04 H 07/06/2023 Ground Floor Living area 05 H 07/06/2023 Lower Ground Rumpus 06 H 07/06/2023 Demolition Plan 06.a I 'Date 9' Elevations 07 H 07/06/2023 Elevations 08 H 07/06/2023 Elevations 09 H 07/06/2023 Sections 10 H 07/06/2023 Sections 11 H 07/06/2023 Sections 11a H 07/06/2023 Exterior Works 12 H 07/06/2023 Cross Section analysis 12.1 I 'Date 9' Lower Level Elevation 13 H 07/06/2023 Lower Level Section 14.1 H 07/06/2023 Lower Level Section 14.2 I 'Date 9' Lower Level Section 14.3 I 'Date 9' Pool Plan 15 H 07/06/2023 Pool Plan 16 H 07/06/2023 Area Calculations 17 H 07/06/2023 Concept Stormwater Plan 18 H 07/06/2023 Shadow Diagrams – Winter 19 H 07/06/2023 Shadow Diagrams – Equinox 20 H 07/06/2023 Shadow Diagrams – Summer 21 H 07/06/2023 Construction Management Plan 22 H 07/06/2023 Materials & Finishes 23 H 07/06/2023 Roof Plan 24 H 07/06/2023 View Analysis 25 H 07/06/2023 Neighbouring View to Master 26 H 07/06/2023 Height Plane Diagrams 27 H 07/06/2023 1. The following amended landscape plans prepared by Couvaras Architects: Drawing Title Drawing No. Revision Date Landscape Title sheet LP01 F 19 July 2023 Landscape Plan: House LP02 F 19 July 2023 Landscape Plan: Foreshore LP03 F 19 July 2023 Landscape Details LP04 F 19 July 2023 1. BASIX Certificate No. A428287_02 issued 24 July 2023. 1. The Applicant filed the Amended Plans on 8 August 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA22/0063, as amended, for alterations and additions to an existing dwelling house and construction of two swimming pools at land identified as Lot 2 in Deposited Plan 1251699, known as 696A Port Hacking Road, Dolans Bay NSW 2229, subject to the conditions of consent in Annexure A. E Espinosa 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: 15 September 2023