Land and Environment Court New South Wales Medium Neutral Citation: Geeves v Sutherland Shire Council [2023] NSWLEC 1702 Hearing dates: Conciliation conference 17 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA23/0228 for the construction of a swimming pool at 204 Princes Charles Parade Kurnell on land identified as Lot 51 in DP 7632 is determined by the grant of consent subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new swimming pool in front setback of dwelling – conciliation conference – amended plans – agreement between the parties – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, 4.15, 4.16, 4.55, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6 Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Paula Michelle Geeves (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: A Boskovitz, solicitor (Applicant) J Amy, solicitor (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/258968 Publication restriction: No JUDGMENT 1. COMMISSIONER: This appeal concerns a development application for the construction of a swimming pool on Lot 51 in DP 7632, also known as 204 Prince Charles Parade, Kurnell. The development application was refused by the respondent on 22 May 2023. The applicant appeals against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. A conciliation conference was held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) on 17 November 2023. I presided over the conciliation conference. 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 for the development application, as amended, and granting development consent subject to the annexed conditions of consent. 3. 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). I form this state of satisfaction on the basis that: 1. The development application was lodged by Mr M Bednarczyk as agent for the owner of the land. The Applicant (as principal) has standing to commence the proceedings: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43]. 2. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies. Pursuant to SEPP RH the site is mapped within the Coastal Use Area. The part of the land where the swimming pool is proposed is mapped as within the Coastal Environment Area. As a result, ss 2.10 and 2.11 of SEPP RH apply. The parties agree, and I accept, that the Statement of Environmental Effects supporting the development application adequately considers the matters arising in these sections and on this basis of that consideration the Court can be satisfied of the matters at cll 2.10 (2) and 2.11(1) of SEPP RH. 3. As required by s 4.6 of SEPP RH, consideration has been given as to whether the subject site is contaminated. The parties agree that the site has historically been used for residential purposes. The council records do not indicate the site has been previously used for a potentially contaminating use. I accept that the site will be suitable for the proposed development. 4. Pursuant to cl 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate is not required as the cost of works is less than $50,000. 5. The Sutherland Shire Development Control Plan 2015 (DCP 2015) applies to the site. The Statement of Facts and Contentions notes the compliance of the proposed development with DCP 2015. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act. 6. The original development application was notified in accordance with Council Notifications Policy from 15 to 31 May 2023. No submissions were received. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 3. The Court notes that: 1. The Respondent, Sutherland Shire Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-23/0228 to rely on the documents listed below: Amended Architectural Plans Plan description Plan No and rev Prepared by Dated Site Analysis DA01 Rev C Archispectrum 04.10.23 Proposed Ground Floor Plan DA02 Rev C Archispectrum 04.10.23 Site and Roof Plan DA03 Rev C Archispectrum 04.10.23 North Elevation and Section AA DA04 Rev C Archispectrum 04.10.23 Landscape Calculations DA05 Rev C Archispectrum 04.10.23 Erosion and Sediment Control Plan DA06 Rev C Archispectrum 04.10.23 Supporting Documentation Landscape Plans Sheets LO1-LO3 Zenith Landscape 20.09.23 Acid Sulfate Soil Assessment Report G23074KUR-R01F Rev 0 Geo Environmental Engineering 28.09.23 1. The Court orders that: 1. The appeal is upheld 2. Development Application DA23/0228 for the construction of a swimming pool at 204 Princes Charles Parade Kurnell on land identified as Lot 51 in DP 7632 is determined by the grant of consent subject to conditions contained in Annexure A. D Dickson Commissioner of the Court ********** Annexure A (238753, pdf) 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: 23 November 2023