Land and Environment Court New South Wales Medium Neutral Citation: Stoukalo v Sutherland Shire Council [2023] NSWLEC 1558 Hearing dates: Conciliation conference on 30 August and 5 September 2023 Date of orders: 26 September 2023 Decision date: 26 September 2023 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA22/0376 for construction of a rainwater tank under the driveway, a deck in the rear yard with storage underneath at 109 Auburn Street, Sutherland, being the whole of the land in Lot 1 Deposited Plan 571603, subject to conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7 Environmental Planning and Assessment Regulation 2021, ss 27, 38, Sch 7 Land and Environment Court Act 1979, ss 17, 34 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, s 4.6 Sutherland Local Environmental Plan 2015, cll 4.3, 4.4, 5.21, 6.1, 6.2, 6.4, 6.14, 6.17 Texts Cited: Sutherland Development Control Plan 2015 Category: Principal judgment Parties: E Stoukalo (also known as John Stoukalo) (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: E Stoukalo (Self-represented) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Sutherland Shire Council (Respondent) File Number(s): 2023/171489 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against Sutherland Shire Council's (Council) refusal of Development Application DA22/0376 (DA) on 1 December 2022 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) in relation to 109 Auburn Street, Sutherland being the whole of the land in Lot 1 Deposited Plan 571603 (Site): 1. The DA proposal is for the construction of a basement with deck above in the rear setback, and the construction of an underground rainwater tank in the front setback of an existing two-storey detached dwelling house on the Site. 2. The Site has an area of 660.5m2 with a moderate fall to the south-west, being an average fall of approximately 2.6m (7%). 3. The appeal was filed in Court on 29 May 2023 in compliance with the time provision in s 8.10(1)(a) of the EPA Act. 4. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 5. The statutory power or function to be exercised in determining the proceedings is s 4.16(1)(a) of the EPA Act. 1. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 30 August 2023 and 5 September 2023. I presided over the conciliation conference. 2. 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 subject to conditions in Annexure A pursuant to ss 4.16(1)(a) and 4.17(1)(a) respectively of the EPA Act. 3. 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. 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 the jurisdictional prerequisites have been satisfied: 1. The Site is owned by the Applicant, and his partner, Alexandra Shkarbanova. Ms Shkarbanova gave her consent to the DA being lodged with Council in compliance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) (folios 14 and 18 of Council's Bundle of Documents). 2. The Site is zoned R2 Low Density Residential pursuant to the Land Use Table of Sutherland Local Environmental Plan 2015 (SSLEP 2015), and the development for the purposes of ancillary structures to dwelling houses is permitted with consent in accordance with the Land Use Table in SSLEP 2015. 3. The DA meets the following objectives of the R2 Low Density Residential zone within SSLEP 2015: • To provide for the housing needs of the community within a low density residential environment. … • To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi-dwelling housing or seniors housing. 1. The Respondent agrees that the DA in its amended format meets the zone objectives. 1. On 30 August 2023, the parties agreed the following amendments to the plans: 1. The rainwater tank under the driveway is acceptable, subject to conditions in Annexure A. Council relied upon an Expert Report prepared by Youssef Riad dated 17 August 2023, and Mr Riad further satisfied himself as to the discharge from the rainwater tank by gravity across the Applicant's land to Council's gutter, providing sufficient drainage in accordance with Chapter 38 of Sutherland Development Control Plan 2015 (SDCP 2015). 2. A deck can be installed at the rear of the dwelling, with the following parameters: 1. A 4m setback from the rear boundary. 2. The southern edge of the deck shall be 3.66m off the property boundary. 3. The finished floor level of the deck can match the existing finished floor level of the Alfresco area, being RL 87.9. 4. A balustrade is required along the southern and western edges of the deck, where it is 1m above existing ground level. 1. The area beneath the deck can be used for storage only. The finished floor level of the storage area shall be RL 84.9. 2. Access to the dry storage area under the deck will be via a hatch door. 3. The Applicant shall add a 300mm lattice privacy screen to the top of the existing colour bond fence along the southern boundary equal to the length of the deck. 4. With Mr Riad's advice, Council accepted that there is adequate drainage for the additional impervious area of the deck. 5. Mr Glenn Apps, town planner, acting for Council filed an Expert Report on 17 August 2023. Council accepted Mr Apps' advice on 30 August 2023 that the amended plans for the deck now provide for a rear setback of 4m which is acceptable. 1. On 5 August 2022 the DA was placed on public exhibition in accordance with the requirements of Chapter 42 of the SDCP 2015. The last date for submissions was 29 August 2022. Nineteen adjoining or affected properties were notified but no submissions were received. The amended plans reduce impacts upon neighbouring properties, and as a result do not require further notification to surrounding property owners. 2. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP): pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site for the proposed DA and whether satisfactory measures are put in place to remediate the Site should it be required to do so. From a desktop review of the Council's Geo Spatial System and aerial photographs, the Site has always been used for residential purposes. Therefore, in accordance with s 4.6 of the Resilience & Hazards SEPP, the Court can be satisfied that the Site is not contaminated, and is suitable for the purposes of the DA. 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP): pursuant to the definition within Sch 7 of the EPA Regulation, the BASIX SEPP does not apply as "BASIX excluded development" means: "development for the purposes of a garage, storeroom, carport, gazebo, verandah or awning ….". Therefore, the proposed development does not require a BASIX Certificate. 4. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP): Mr Paul Vezgoff, arborist acted for Council and filed an Expert Report on 22 August 2023 (Vezgoff Report). The Vezgoff Report noted: 1. On p 2 par [3.3]: "….private trees are protected under the Sutherland Shire Council Development Control Plan (DCP) Chapter 39 'Natural Resource Management' (Section 4). This was developed under the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021." 1. No clearing of vegetation is proposed and the 4m setback from the rear boundary will ensure the 2m Tree Protection Zone of the adjoining neighbour's trees and they will not be impacted (p 3 par [3.7]-[3.8]). 1. The further relevant development standards in SSLEP 2015 are: 1. Height of Buildings (cl 4.3) which has a relevant control of 8.5m. The proposed works in the DA satisfy the height control. 2. Floor Space Ratio (cl 4.4) which has a relevant control of 0.55:1. The proposed works in the DA satisfy the FSR control (Town Planning Report of Glenn Apps filed 17 August 2023 p 5 par [14]). 3. Landscaped area (cl 6.14) which has a relevant control of 35% of the Site for landscaping. The proposed works in the DA satisfy this clause (Town Planning Report of Glenn Apps filed 17 August 2023 p 15 par [62]). 4. Flood planning (cl 5.21): the Site is not mapped as flood prone. 5. Acid Sulfate soils (cl 6.1): the Site is not mapped as having Acid Sulfate Soils. 6. Earthworks (cl 6.2): conditions have been imposed in Annexure A which satisfy the requirements of cl 6.2 in relation to earthworks. 7. Stormwater Management (cl 6.4): Mr Youssef Riad gave expert evidence on behalf of Council, and assisted during the conciliation conference to ensure that cl 6.4 was satisfied by imposing appropriate and agreed stormwater conditions of consent. 8. Urban Design – general and residential accommodation (cll 6.16 and 6.17): the amended plans are acceptable in their impact on neighbouring properties, minimising any adverse impacts, integrating into a landscaped setting together with integrating into the character of the area and impacts on the natural landform of the Site. 1. As set out above, 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 shall uphold the appeal and grant consent to the DA pursuant to s 4.16 (1)(a) with conditions in Annexure A in accordance with s 4.17(1)(a). 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 that Sutherland Shire Council, as the relevant consent authority, has agreed, under s 38 (1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA 22/0376 to rely upon the following plans and documents as signed by the parties and dated 30 August 2023: No. Document Date 66 Sketch Plan (marked in red) signed by the parties 30.8.2023 67 Site Management Plan (marked in red) signed by the parties 30.8.2023 68 Proposed Works (marked in red) signed by the parties 30.8.2023 69 East and South Elevations, labelled Sections 1 & 2 (marked in red) signed by the parties 30.8.2023 70 West and North Elevations, labelled Section 3 & 4 (marked in red) signed by the parties 30.8.2023 Terms of Agreement (handwritten) signed by the parties 30.8.2023 1. The Council is satisfied that the contentions raised in its Statement of Facts and Contentions filed 13 July 2023 have been addressed by the amended plans and documents as set out above. 2. I am not required, and have not, considered the merit issues in this matter. 3. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA22/0376 for construction of a rainwater tank under the driveway, a deck in the rear yard with storage underneath at 109 Auburn Street, Sutherland, being the whole of the land in Lot 1 Deposited Plan 571603, subject to conditions in Annexure A. M Peatman Acting Commissioner of the Court Annexure A Plans page 1 Plans page 2 ********** 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: 26 September 2023