Mount Street 1 Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1607

Land and Environment Court New South Wales

Medium Neutral Citation: Mount Street 1 Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1607 Hearing dates: 3, 4, 5 and 30 May 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent detailed at pars [15] and [17] pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (2) The written request pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to justify the contravention of development standard in cl 4.3 of the SSLEP is not upheld. (3) The appeal is dismissed. (4) Development application No DA21/1131 is determined by refusing consent to the application. Catchwords: DEVELOPMENT APPEAL – warehouse and light industrial complex with 103 tenancies – contravention of maximum height of building development standard – constrained site - flood planning – easement – orders Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979, ss 3.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 38, 55 Land and Environment Court Act 1979, ss 39, 40 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2021 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 Sutherland Shire Local Environmental Plan 2015, cll 1.9A, 4.3, 4.6, 5.21, 6.1, 6.4 Cases Cited: Cracknell and Lonergan Pty Limited v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392 Cumerlong Holdings Pty Limited v Dalcross Properties Pty Limited (2011) 243 CLR 492; [2011] HCA 27 Doe v Cogente Pty Ltd (1997) 94 LGERA 305 Natva Developments Pty Ltd v McDonald Bros Pty Ltd & Ors [2004] NSWSC 777 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: NSW Department of Planning and Environment, Draft Shelter In Place Guidelines Peter Butt, Butt's Land Law, Peter Butt, (7th edition, 2017, Thomson Reuters) Sutherland Shire Development Control Plan Category: Principal judgment Parties: Mount Street 1 Pty Ltd ACN 648960070 (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: T To (Applicant) J Reid (Respondent)