Land and Environment Court New South Wales Medium Neutral Citation: Builtcom Developments President Square Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1147 Hearing dates: Conciliation conference on 21 December 2023; 5, 21 and 28 February 2024; 6, 18 and 22 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The modification application MA23/0154 is approved. (2) Development consent no. DA19/0333 is modified in the terms set out in Annexure A. (3) Development consent no. DA19/0333 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.22, 4.55; Sch 1 Environmental Planning and Assessment Regulation 2021, ss 27, 29, 113 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.119, 2.120, 2.122 State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 30; Sch 1 Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6, 6.2, 6.4, 6.15, 6.16, 6.17 Cases Cited: Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458 Category: Principal judgment Parties: Builtcom Developments President Square Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: H Kahagalle (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2023/212442 Publication restriction: Nil JUDGMENT 1. These proceedings arise following an application, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), for the modification of a development consent (DA19/0333) granted by the Court on 29 September 2020 in Coles Group Property Developments Ltd v Sutherland Shire Council [2020] NSWLEC 1458 (the Consent). 2. The Consent approved the demolition of existing structures; tree removal; construction of a shop top housing development containing a supermarket, liquor store, specialty shops, 130 residential apartments, undercroft and basement car parking; internal fitout and use of the supermarket and liquor store; advertising signs and signage zones; and associated civil infrastructure, public domain and landscape works at 178-186 Willarong Road, 41-47 President Avenue and 51 President Avenue, Caringbah (legally described as Lot A in DP449572, Lot B in DP449572, Lot X in DP396618, Lot D in DP387699 and Lot 26 to 29 in DP10068) (the site). 3. The modification application is to relocate and redesign residential apartments and make changes to the design of the car park, supermarket and associated infrastructure (proposed development). 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 December 2023. I presided over the conciliation conference. Amended plans and documents 1. During the conciliation process, the Council approved, under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), to the applicant amending modification application MA23/0154 to rely upon the following amended plans and documents (collectively, the amended modification application): 1. Amended Plans prepared by CQ Studios: Plan No. Plan Name Rev Dated DA01-000 Cover Page DA3 28 February 2024 DA01-100 Development Data Sheet DA4 2 February 2024 DA01-200 Height Plane Diagram DA2 11 December 2023 DA10-010 Site Plan DA4 2 February 2024 DA10-070 Basement 3 Plan DA4 19 January 2024 DA10-080 Basement 2 Plan DA4 19 January 2024 DA10-090 Basement 1 Plan DA4 19 January 2024 DA10-100 Ground Floor Plan DA4 19 January 2024 DA10-110 Level 1 Plan DA4 19 January 2024 DA10-115 Level 1 Mezzanine Plan DA4 19 January 2024 DA10-120 Level 2 Plan DA4 19 January 2024 DA10-130 Level 3 Plan DA4 19 January 2024 DA10-140 Level 4 Plan DA4 19 January 2024 DA10-150 Level 5 Plan DA6 6 February 2024 DA10-160 Level 6 Plan DA5 2 February 2024 DA10-170 Level 7 Plan DA5 2 February 2024 DA10-180 Level 8 Plan DA4 19 January 2024 DA10-190 Roof Plan (Survey Overlay) DA5 2 February 2024 DA10-200 Adaptable Unit Types - Sheet 01 DA2 19 January 2024 DA10-201 Adaptable Unit Types - Sheet 02 DA2 19 January 2024 DA10-202 Adaptable Unit Types - Sheet 03 DA2 19 January 2024 DA10-203 Adaptable Unit Types - Sheet 04 DA2 19 January 2024 DA10-204 Adaptable Unit Types - Sheet 05 DA2 19 January 2024 DA20-101 West East Elevation DA5 6 February 2024 DA20-102 North South Elevation DA5 2 February 2024 DA20-201 Internal Courtyard Elevations DA4 19 January 2024 DA20-202 Internal Courtyard Elevations DA4 19 January 2024 DA20-301 Signage Elevations DA1 28 February 2024 DA30-001 Section DA-01 DA4 19 January 2024 DA30-002 Section DA-02 DA4 19 January 2024 DA91-001 GFA Plans - Sheet 01 DA4 19 January 2024 DA91-002 GFA Plans - Sheet 02 DA4 19 January 2024 DA93-001 Solar Access Diagrams DA4 19 January 2024 DA93-003 Solar Suneye Views DA4 19 January 2024 DA93-004 Solar Suneye Views DA4 19 January 2024 DA93-005 Solar Suneye Views DA4 19 January 2024 DA93-006 Solar Suneye Views DA4 19 January 2024 DA93-007 Shadow Analysis DA4 19 January 2024 DA93-008 Shadow Analysis - Communal Open Space DA3 19 January 2024 DA94-000 Cross Ventilation Compliance Plans DA4 19 January 2024 DASK-001 Mezzanine Details and Sections DA4 19 January 2024 DASK-002 Balcony Condenser & Façade Element Details DA2 2 February 2024 DASK-003 Typical Façade Plan and Elevation DA1 19 January 2024 DASK-004 Light-Weight Awning Details DA1 2 February 2024 1. Landscape Plans prepared by GSAGroup: Plan No. Plan Name Rev Dated L0000 Coversheet D 18 January 2024 L1000 Landscape Specification D 18 January 2024 L1100 Landscape Plans – Level 1 C 13 December 2023 L1101 Landscape Plan – Public Domain Area D 18 January 2024 L1102 Landscape Plan – LV2 Overall D 18 January 2024 L1103 Landscape Plan – LV2 1 of 3 D 18 January 2024 L1104 Landscape Plan – LV2 2 of 3 D 18 January 2024 L1105 Landscape Plan – LV2 3 of 3 D 18 January 2024 L1106 Landscape Plan – LV6 D 18 January 2024 L5001 Planting Palette D 18 January 2024 1. Civil Plans prepared by Xavier Knight: Plan No. Plan Name Rev Dated C000 Cover page B 6 April 2023 C100 Stormwater management plan – ground floor C 6 October 2023 C101 Stormwater quality catchment plan B 6 April 2023 C102 Stormwater quality details B 6 April 2023 C300 Demolition plan B 6 April 2023 C301 Soil and water management plan B 6 April 2023 C302 Soil and water management details B 6 April 2023 C303 Soil and water management notes B 6 April 2023 C090 Stormwater Management Plan – Basement 1 A 6 October 2023 1. Other documents: Document(s) Dated Visual Impact Analysis prepared by CQ Studio 2 February 2024 SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio 2 February 2024 Traffic Management Report prepared by Loka Consulting Engineers 4 December 2023 Natural Ventilation Plenum Duct Memo prepared by Windtech 4 December 2023 Building Code of Australia Compliance Statement prepared by Allcert 14 December 2023 Acoustical Report prepared by Koikas Acoustics 12 December 2023 Access Design Report prepared by Certis Access 14 December 2023 Green Travel Plan prepared by Loka Consulting Engineers 22 December 2023 Survey Plan Building Height Assessment prepared by Planning Ingenuity 15 December 2023 BASIX Certificate 16 February 2024 NatHERS Thermal Assessor Certificate 15 December 2023 Statement of environmental effects prepared by Gyde Consulting 28 June 2023 Arborist report prepared by Redgum Horticultural 22 March 2023 Stormwater quality letter prepared by Xavier Knight 6 April 2023 Quantity surveying report prepared by Newton Fisher Group 30 March 2023 Fire services drawing prepared by Goldfish & Bay, Rev P1 19 April 2023 Waste management plan prepared by CQ Design Studio, Rev A 12 April 2023 Construction Management Plans 15 May 2023 1. The amended modification application was filed with the Court on 22 March 2024. 2. The Council, being satisfied that the amended modification application addresses the contentions in its Statement of Facts and Contentions, has executed a s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to it. This decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify development consent no. DA19/0333. 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. In that regard I note the following matters. Jurisdictional preconditions 1. The modification application was notified between 1 August 2023 and 18 August 2023 in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act. 2. All matters of relevance raised in the submissions to the modification have been taken into consideration. 3. The provisions of s 4.55(2) of the EPA Act apply to this modification application. The parties submit and I accept for the reasons outlined in the Statement of Environmental Effects that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted. Sutherland Shire Local Environmental Plan 2015 (LEP) 1. The parties submit and I accept that the below provisions of the LEP apply and were satisfied when the Consent was granted. There are no further provisions in the LEP that apply so as to create jurisdictional preconditions to the determination of the modification application. 2. The proposed modifications do not trigger any further matters for assessment under the LEP. The provisions are included below for completeness. 3. The site is zoned E2 Commercial Centre under the LEP. The site was previously zoned B2 Commercial Core prior to the commencement of the State Environmental Planning Policy Amendment (Land Use Zones) (No 6) 2022 which omitted Business Zones, including the B2 Commercial Core, from the LEP and inserted instead Employment Zones, including the E2 Commercial Centre zone. 4. The proposed development is a permissible land use with development consent in the E2 Commercial Centre zone. 5. The objectives of the E2 Commercial Centre zone are: • To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity. • To encourage investment in commercial development that generates employment opportunities and economic growth. • To encourage development that has a high level of accessibility and amenity, particularly for pedestrians. • To enable residential development only if it is consistent with the Council's strategic planning for residential development in the area. • To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces. 1. Consideration has been given to the objectives of the E2 Commercial Centre zone as required by cl 2.3(2) of the LEP. 2. The parties submit and I accept that the proposed development is consistent with the objectives of the E2 Commercial Centre zone. Clause 4.3 Height of buildings 1. The site is identified as two internal sites, being the Northern building and Southern Building. 2. Pursuant to cl 4.3 of the LEP and the Height of Buildings Map, the site is subject to a 20 m height control at the Southern building and 30 m height control at the Northern building. The Consent included a breach of the height control at both the Northern building (1 m) and the Southern building (4.4 m). A written request that justified the contravention of the development standards, in accordance with cl 4.6 of the LEP was granted for the Consent. The proposed development includes a further breach of the height control at the Northern building by a maximum of 2.95 m. Clause 4.4 Floor space ratio (FSR) 1. Pursuant to cl 4.4 of the LEP and the Floor Space Ratio Map, the site is subject to a FSR control of 3:1 at the Southern building and a FSR control of 2.5:1 at the Northern building. The Consent included an FSR for the Southern building of 2.83:1 and an FSR for the Northern building of 3.61:1 which constituted a breach of the FSR control for the Northern building. The proposed development does not propose any further breach of the FSR control and no overall change to the FSR across the site (as demonstrated on plan DA01-100 Rev DA4 prepared by CQ Studio, enclosed at Tab 1 of the amended modification application). Clause 6.2 Earthworks 1. The Consent includes a Preliminary Geotechnical Report prepared by Geo-Logix dated 10 July 2018, which addressed cl 6.2(3) of the LEP. The parties submit and I accept that the Consent satisfies the considerations within cl 6.2 and that the site is suitable for the proposed development. Clause 6.4 Stormwater management 1. The applicant has provided Civil Plans prepared by Xavier Knight and a Stormwater Quality Letter prepared by Xavier Knight dated 6 April 2023. The Stormwater Management Report concludes that water sensitive urban design principles are incorporated into the design of the proposed development, and that stormwater run-off will be managed throughout the site. 2. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.4 of the LEP. Clause 6.15 Energy efficiency and sustainable building techniques for commercial and industrial developments 1. The applicant has provided Architectural plans prepared by CQ Studios dated 2 February 2024 which details the materials and construction of the building, a Waste Management Plan prepared by CQ Design Studio, Rev A dated 12 April 2023 and the Consent also included a Coles Caringbah Supermarket Operations Management Plan dated January 2020 which collectively detail how the waste from the site will be managed. 2. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.15 of the LEP. Clause 6.16 Urban design - general 1. The applicant provided an Urban Design Report prepared by e8urban dated 16 March 2018 which addresses cl 6.16 of the LEP. The parties agree that the Consent and the proposed development satisfy the considerations within cl 6.16. Clause 6.17 Urban design - residential accommodation 1. The applicant has provided a Visual Impact Analysis prepared by CQ Studio dated 2 February 2024 and a SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio dated 2 February 2024 as part of the amended modification application and an Urban Design Report prepared by e8urban dated 16 March 2018 forms part of the Consent. 2. The parties submit and I accept that the proposed development satisfies the considerations within cl 6.17 of the LEP. BASIX Certificate 1. The modification application has been accompanied by BASIX Certificate 1374312M_03, dated 16 February 2024 as required pursuant to s 27 of the EPA Regulation. State Environmental Planning Policy (Resilience and Hazards) 2021, Chapter 4 (formerly State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)) 1. The Consent includes a Remedial Action Plan prepared by Geo-Logix dated 11 July 2018, which addresses cl 7 of SEPP 55. The parties agree that the Consent complies with the requirements of cl 7 and that the proposed development is consistent with the Consent in relation to the remediation of land. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) 1. Clause 30(2) of SEPP 65 sets out matters which the consent authority must be satisfied have been given adequate regard. In order to address these matters, and pursuant to the provisions of s 29 of the EPA Regulation, the applicant has provided a SEPP 65 Design Verification, Design Principles and ADG Compliance prepared by CQ Studio dated 2 February 2024 as part of the amended modification application. The Council reviewed the SEPP 65 Design Verification, Design Principles and ADG Compliance and considered it to be satisfactory. 2. The parties submit and I accept that the proposed development has addressed those matters referred to in cl 30(2) of SEPP 65, fulfills the requirements of s 29(2) of the EPA Regulation and is consistent with the nine design principles in Sch 1 of SEPP 65, and that the site is suitable for the residential flat building in the proposed development. State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) 1. As the site is located with frontage onto a rail corridor and President Avenue, which is a classified road, ss 2.99, 2.100, 2.119, 2.120 and 2.122 of the T&I SEPP apply to the proposed development. 2. The parties submit and I accept that s 2.99 (Excavation in, above, below or adjacent to rail corridors) of the T&I SEPP applies to the proposed development and that it has been satisfied by the Consent. The proposed development is consistent with the Consent in relation to excavation and is not required to be referred to the Transport for NSW (TfNSW) for comment. 3. The applicant has provided an Acoustic Report provided by koikasacoustics dated 12 December 2023 as part of the amended modification application. The parties submit and I accept that the proposed development satisfies the matters set out in s 2.100 (Impact of rail noise or vibration on non-rail development) of the T&I SEPP. 4. The parties submit and I accept that the matters set out in s 2.119(2) (Development with frontage to classified road) are satisfied as the proposed development maintains vehicular access via Willarong Road as detailed in the Traffic Management Report prepared by Loka Consulting Engineers dated 4 December 2023. 5. Section 2.120 (Impact of road noise and vibration on non-road development) of the T&I SEPP also applies to the proposed development, as it proposes residential accommodation and is located on land adjacent to a road (President Avenue) with an average annual daily traffic volume of more than 28,000 vehicles. The applicant has provided an Acoustic Report provided by koikasacoustics dated 12 December 2023 as part of the amended modification application. The parties submit and I accept that the matters set out in s 2.120(3) are satisfied. 6. The parties submit and I accept that s 2.122 (Traffic-generating development) of the T&I SEPP applies to the proposed development and that it has been satisfied by the Consent. The proposed development is consistent with the Consent and is not required to be referred to the TfNSW for comment. Conclusion and orders 1. For the above reasons I find that the parties' decision is within power as required by s 34(3) of the LEC Act. I now dispose of the proceedings in accordance with the parties' decision. 2. The Court notes that the applicant will pay the Council's costs in the amount of $20,000 within 28 days of the date of these orders. 3. The Court orders: 1. The modification application MA23/0154 is approved. 2. Development consent no. DA19/0333 is modified in the terms set out in Annexure A. 3. Development consent no. DA19/0333 as modified by the Court is Annexure B. …………………… S Dixon Senior Commissioner of the Court Annexure A (307518, pdf) Annexure B (531564, pdf) ********** Amendments 03 April 2024 - Correction to typographical error at [11]. 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: 03 April 2024