Land and Environment Court New South Wales Medium Neutral Citation: Project Flow Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1167 Hearing dates: Conciliation conference 5 February 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application number DA23/0289, for demolition of existing structures and construction of a multi-dwelling housing development of nine (9) townhouses including basement, swimming pools, carparking and a nine (9) lot strata subdivision on land legally comprising Lots 2, 3 and 1 in DP601639, also known as 35, 35A and 37 Langer Avenue, Caringbah South, subject to the conditions of consent at Annexure A. (3) The Applicant is to pay the Respondent's costs thrown away as a result of the amended plans, in accordance with s 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or as assessed, payable within 28 days of any agreement or assessment. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 Sutherland Shire Local Environmental Plan 2015, cl 6.4 Category: Principal judgment Parties: Project Flow Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: McKee Legal Solutions (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/224537 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No 23/0289 (DA) by Sutherland Shire Council (Council). 2. The DA seeks consent for the demolition of existing dwellings and associated structures and the construction of a multi dwelling housing development comprising nine townhouses and associated works, along with strata subdivision, at 35, 35A and 37 Langer Avenue Caringbah South, legally identified as Lots 1, 2 and 3 in DP 601639 (site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 5 February 2024. After more time was given, the parties came to an 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 consent to the DA, as amended in the course of conciliation, in accordance with agreed conditions. Pre-requisites to the exercise of the function to grant development consent 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 2. There are certain statutory pre-requisites which require attention before this function can be exercised by the Court. I attend to the relevant matters below assisted by the advice in the parties' agreed jurisdictional note received by the Court on 28 March 2024. Sutherland Shire Local Environmental Plan 2015 1. The site is zoned R2 Low Density Residential under the applicable Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development (demolition, multi dwelling housing development, and lot consolidation and strata subdivision) is permissible with consent. I have had regard to the zone objectives and note that the parties believe the proposal, as amended, is compatible with these objectives. 2. I note and accept the advice of the parties that the proposal does not breach any development standards under SSLEP. 3. Clause 6.4 is concerned with stormwater management. On the basis of the advice of the parties and with a view to the stormwater management schema as proposed with the agreed amendments, I am satisfied with respect to the matters at subcl 6.4(3). Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979 1. The parties have advised me of the objecting submissions in relation to the proposal (indeed I heard from a number of objectors during the site inspection). The parties advise they have given consideration to them in coming to the final agreed amended plans. Conclusion 1. With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to "set out in writing the terms of the decision". The final orders have this effect. Notations 1. With respect to the amendments of the DA, the Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application No DA 23/0289 in accordance with the amended plans and documents listed below: Architectural Drawings by Skyline Architects Drawing/Plan No. Issue Plan Title Dated DA-001 E Site Plan 23/02/2024 DA-101 E Basement Plan 23/02/2024 DA-102 E Ground Floor Plan 23/02/2024 DA-103 E Level 01 23/02/2024 DA-104 E Roof Plan 23/02/2024 DA-201 E North/South Elevations 23/02/2024 DA-202 E East/West Elevations 23/02/2024 DA-203 E Internal Elevations East/West 23/02/2024 DA-204 E Internal Elevations North/South 23/02/2024 DA-301 E Section AA/BB 23/02/2024 DA-302 E Ramp Section 23/02/2024 DA-303 E Privacy/ CC Section 23/02/2024 DA-401 E Pre/Post Adaptable Layouts 23/02/2024 DA- 402 E GFA+ Landscape Calculations Diagrams 23/02/2024 DA-403 E Shadow Diagrams – Winter Solstice 23/02/2024 DA-404 E Shadow Diagrams – Summer Solstice 23/02/2024 DA-405 E Shadow Diagrams – MAR & SEP Equinox 23/02/2024 DA-406 E Views from the Sun 9am - 12pm 23/02/2024 DA-407 E Views from the sun 1pm - 3pm 23/02/2024 DA-408 E Building height plane 23/02/2024 DA- 501 E Finishes schedule 23/02/2024 DA- 502 E 3D views 23/02/2024 Landscape Drawings Drawing/Plan No. Issue Plan Title Dated L/00 C Cover Sheet 06/03/2024 L/01 C Proposed Ground Floor Site Plan 06/03/2024 L/02 C Proposed Ground Floor Landscape & Fencing Plan 06/03/2024 L/03 C Proposed Ground Floor Tree Planting Plan 06/03/2024 L/04 C Proposed Ground Floor Shrub and Ground Cover Plan 06/03/2024 L/05 C Proposed first Floor Landscape Plan 06/03/2024 L/06 C Landscape Details 06/03/2024 L/07 C Landscape Specifications 06/03/2024 Stormwater Drainage Plans prepared by Deboke engineering consultants Drawing/Plan No. Issue Plan Title Dated S101 02 Specifications Sheet 08/02/2024 S200 02 Basement Plan 1 of 2 08/02/2024 S201 02 Basement Plan 2 of 2 08/02/2024 S202 02 Ground Floor Plan 08/02/2024 S203 02 First Floor Plan 08/02/2024 S204 02 Roof Plan 08/02/2024 S300 02 Details Sheet 1 of 4 08/02/2024 S301 02 Details Sheet 2 of 4 08/02/2024 S302 02 Details Sheet 3 of 4 08/02/2024 S303 02 Details Sheet 4 of 4 08/02/2024 S400 02 Erosion and Sediment Control Plan 08/02/2024 1. The Applicant has filed the documents referred to above with the Court on 22 March 2024. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application number DA23/0289, for demolition of existing structures and construction of a multi-dwelling housing development of nine (9) townhouses including basement, swimming pools, carparking and a nine (9) lot strata subdivision on land legally comprising Lots 2, 3 and 1 in DP601639, also known as 35, 35A and 37 Langer Avenue, Caringbah South, subject to the conditions of consent at Annexure A. 3. The Applicant is to pay the Respondent's costs thrown away as a result of the amended plans, in accordance with s 8.15(3) of the Environmental Planning & Assessment Act 1979 as agreed or as assessed, payable within 28 days of any agreement or assessment. P Walsh 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: 10 April 2024