Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2024] NSWLEC 1174

Land and Environment Court New South Wales

Medium Neutral Citation: Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2024] NSWLEC 1174 Hearing dates: Conciliation conference 8 April 2024 Date of orders: 12 April 2024 Decision date: 12 April 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away by the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $60,000 within 28 days of the date of these orders. (2) The Applicant's written request, prepared by Sutherland and Associates Planning dated September 2023, made pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to vary the height development standard in cl 4.3 of the SSLEP, is upheld. (3) The appeal is upheld. (4) Development Application No DA21/1251, as amended, for the demolition of existing structures and construction of a mixed use development containing a health service facility of 4,684m2 and 209 residential units, of which 65 are affordable rental housing, with Torrens title and stratum subdivision at 6-20 Hinkler Avenue and 319-333 Taren Point Road, Caringbah, is determined by the grant of consent subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – mixed use development in R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders Legislation Cited: Architects Act 2003 Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, ss 4.46, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Water Management Act 2000 Environmental Planning and Assessment Regulation 2000, cll 50, 55 State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.10, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18, 19, 21, 147, Sch 7A, s 8, Sch 9, Pt 2, Div 1, Ch 4 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.100, 2.120, 2.122, Ch 2 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Sutherland Shire Local Environmental Plan 2015, cll 4.1, 4.1A, 4.3, 4.4, 4.6, 5.1, 5.1A, 6.2, 6.4, 6.16, 6.17, 6.18, 6.21 Texts Cited: Sutherland Shire Development Control Plan 2015 NSW Department of Planning and Environment, Apartment Design Guide, July 2015 NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline, December 2008 Category: Principal judgment Parties: Hinkler Ave 1 Pty Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) J Reid (Respondent)