Land and Environment Court New South Wales Medium Neutral Citation: Alcorp Builders Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1208 Hearing dates: Conciliation conference 4 April 2024 Date of orders: 23 April 2024 Decision date: 23 April 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application in the agreed final sum of $20,000.00 to be paid within 28 days of these orders. (2) The appeal is upheld. (3) Development application number DA22/1154, as amended, for the demolition of existing structures and construction of a residential flat building on land identified as Lot 17 in Deposited Plan 14633 and Lot 18 in Deposited Plan 14633 and known as 32-34 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a residential flat building – amended plans and additional information – agreement between the parties – orders made Legislation Cited: Architects Act 2003 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, ss 29, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 2.2, s 2.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Ch 4, ss 145, 147 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 6.2, 6.4 Texts Cited: Apartment Design Guide 2015 Category: Principal judgment Parties: Alcorp Builders Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Bartier Perry (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/151336 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to subs 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA22/1154. The development application seeks consent for the demolition of existing structures and construction of a residential flat building. The development is proposed at 32-34 Waratah Road, Engadine (Lot 17 Deposited Plan 14633 and Lot 18 in Deposited Plan 14633). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 4 August 2023. The conciliation conference was adjourned to allow the parties to continue discussions, but was ultimately terminated on 6 October 2023. 3. The Proposal, as amended, seeks consent for: 1. A total of 32 residential units (10 x 1-bedroom units, 15 x 2-bedroom units and 7 x 3-bedroom units); 2. A total gross floor area of 2723.94sqm; 3. Six levels of residential accommodation; 4. Basement parking for 34 cars over two levels; 5. Associated site works including landscaping. 1. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. On 4 April 2024, the day the matter was listed for hearing, the parties advised the Court of their agreement and the proceedings were listed for a further conciliation conference. I presided over the further conciliation conference. 2. 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 made with the written consent of the registered proprietors of the two lots which comprise the site: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) 2. The development application involves the removal of existing vegetation on the site. Part 2.2 'Clearing of vegetation in non-rural areas' of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. In granting consent to the development application, I have considered the matters at s 2.10 of the SEPP BC. The parties agree, and I accept, that I can be satisfied that: 1. The amended development application is acceptable, 2. The annexed conditions require the protection of nominated trees and appropriately grant consent for the removal and replacement of others. 1. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX affected development. An updated BASIX certificate has been provided as part of the amended development application. 2. As the development is a 'residential apartment development', Ch 4 'Design of Residential Apartment Development' of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies. As required by s 145 of SEPP Housing, the Respondent did constitute a design review panel who provided advice in relation to the original development application. 3. As required by subs 147(1) SEPP Housing in determining the development application, I have considered the quality of the design of the development as evaluated against: firstly, the design principles in Sch 9 of SEPP Housing, and secondly, the Apartment Design Guide (ADG) and the advice received from the design review panel. In undertaking this consideration, I have read the design analysis prepared by Alexander-Hatziplis of Place Studio (Registered Architect #10535). I accept the agreement of the parties that appropriate consideration has been given to the matters listed a subs 147(1) of SEPP Housing. 4. Further, subs 29(2) of the (EPA Regulation) requires a development application that relates to residential apartment development to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003. The statement must verify the designer designed, or directed the design of the development, and explain how the development addresses the design principles, and objectives in Parts 3 and 4 of the ADG (subs 29(2) of the EPA Regulation). 5. I am satisfied that the statement provided by Alexander-Hatziplis adequately demonstrates that the development is largely consistent with the design quality principles, and achieves the objectives and design criteria of the ADG. 6. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied. 7. As the site is in proximity to an exposed overhead electricity power line subs 2.48(1)(b)(iii) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. Consistent with subs 2.48(2) of SEPP TI the Respondent has given written notice to Ausgrid, the electricity supply authority of the area in which the development is to be carried out. A response was provided from Ausgrid indicating that there were no objections to the proposal. 8. Sutherland Shire Local Environmental Plan 2015 (LEP 2015) applies to the land which is zoned E2 Commercial Centre. In determining the development application, I have given consideration to the zone objectives which 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. The proposed development, a residential flat building, is development permitted with consent in the zone. 2. Pursuant to cl 4.3(2) of LEP 2015 and the Height of Buildings Map of the LEP, a height development standard of 20 metres applies to the Site. The development application provides a maximum building height of 19.9 metres and, thus, complies with the height development standard. 3. Pursuant to cl 4.4(2) of LEP 2015, and the Floor Space Ratio (FSR) Map, a FSR development standard of 2:1 applies to the site. The parties agree and I accept that the development application provides a maximum FSR of 1.99:1 and, thus, complies with the FSR development standard. 4. The development application seeks consent for excavation and fill. As required by cl 6.2 'Earthworks' of LEP 2015, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the stormwater and architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application. 5. Pursuant to cl 6.4 'Stormwater Management' development consent must not be granted unless the consent authority is satisfied that the development: (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. 1. The development application is accompanied by an amended concept stormwater plan which addresses stormwater drainage from the development and provides for on-site detention and reuse of stormwater. I am satisfied that the design of the development maximises the use of water permeable surfaces on the site and allows for deep soil planting areas. Further, I am satisfied that the stormwater design is such that any adverse impact from stormwater are mitigated by the stormwater design proposed. 2. The development application was notified by the Respondent in February 2023. A total of thirty-five submission were received by the Respondent objecting to the development. Further, at the commencement of the conciliation the Court was addressed by two members of the public. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act. 3. Sutherland Shire Development Control Plan 2015 (DCP 2015) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2015 In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, subs 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" (subs 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to subss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following additional and amended materials. Document Description Prepared By Date Architectural plans: AR-DA-0000 (Rev. F) – Cover Sheet PLACE Studio 11 December 2023 AR-DA-0001 (Rev. F) – Compliance Table PLACE Studio 11 December 2023 AR-DA-0002 (Rev. F) – Location Plan PLACE Studio 11 December 2023 AR-DA-0003 (Rev. F) – Site Analysis Plan PLACE Studio 11 December 2023 AR-DA-0004 (Rev. F) – Street Analysis PLACE Studio 11 December 2023 AR-DA-0005 (Rev. F) – Demolition Plan PLACE Studio 11 December 2023 AR-DA-0006 (Rev. C) – BASIX Certificate PLACE Studio 11 December 2023 AR-DA-1001 (Rev. I) – Basement B2 PLACE Studio 15 March2024 AR-DA-1002 (Rev. I) – Basement B1 PLACE Studio 15 March 2024 AR-DA-2000 (Rev. J) – Ground Level PLACE Studio 18 March 2024 AR-DA-2001 (Rev. G) – Level 01-03 PLACE Studio 11 December 2023 AR-DA-2004 (Rev. G) – Level 04 PLACE Studio 11 December 2023 AR-DA-2005 (Rev. G) – Level 05 PLACE Studio 11 December 2023 AR-DA-2010 (Rev. G) – Roof Plan PLACE Studio 12 March 2024 AR-DA-3000 (Rev. F) – Section 1 PLACE Studio 11 December 2023 AR-DA-3001 (Rev. G) – Section 2 PLACE Studio 11 December 2023 AR-DA-3002 (Rev. H) – Section Ramp 1 PLACE Studio 26 February 2024 AR-DA-4000 (Rev. I) – North & South Elevation PLACE Studio 15 March 2024 AR-DA-4001 (Rev. H) – East & West Elevation PLACE Studio 12 March 2024 AR-DA-4002 (Rev. G) – Finishes PLACE Studio 4 March 2024 AR-DA-5000 (Rev. G) – Shadow Diagrams 21st December PLACE Studio 11 December 2023 AR-DA-5001 (Rev. G) – Shadow Diagrams 21st June PLACE Studio 11 December 2023 AR-DA-5002 (Rev. G) – Shadow Diagrams 21st March PLACE Studio 11 December 2023 AR-DA-5003 (Rev. C) – Shadow Diagrams 21st June AXNO PLACE Studio 11 December 2023 AR-DA-5010 (Rev. G) – Solar View-June 21 9 AM PLACE Studio 11 December 2023 AR-DA-5011 (Rev. G) – Solar View-June 21 10 AM PLACE Studio 11 December 2023 AR-DA-5012 (Rev. G) – Solar View-June 21 11 AM PLACE Studio 11 December 2023 AR-DA-5013 (Rev. G) – Solar View-June 21 12 PM PLACE Studio 11 December 2023 AR-DA-5014 (Rev. G) – Solar View-June 21 1 PM PLACE Studio 11 December 2023 AR-DA-5015 (Rev. G) – Solar View-June 21 2PM PLACE Studio 11 December 2023 AR-DA-5016 (Rev. G) – Solar View-June 21 3PM PLACE Studio 11 December 2023 AR-DA-5017 (Rev. B) – Solar Access 21-23 Boronia Avenue PLACE Studio 11 December 2023 AR-DA-6000 (Rev. H) – LEP Height Diagram PLACE Studio 12 March 2024 AR-DA-6001 (Rev. G) – Solar Access Compliance Plans PLACE Studio 11 December 2023 AR-DA-6002 (Rev. G) – Cross Ventilation Compliance Plans PLACE Studio 11 December 2023 AR-DA-6003 (Rev. G) – GFA Calculation Plans PLACE Studio 11 December 2023 AR-DA-6004 (Rev. G) – Deep Soil & Landscape Calc PLACE Studio 11 December 2023 AR-DA-6006 (Rev. E) – Proposed SK Design – Neighbouring Prop PLACE Studio 11 December 2023 AR-DA-6007 (Rev. F) – Proposed SK Design – Neighbouring Prop PLACE Studio 11 December 2023 AR-DA-6008 (Rev. F) – Proposed SK Design – Neighbouring Prop PLACE Studio 11 December 2023 AR-DA-6009 (Rev. E) – Proposed SK Design – Neighbouring Prop PLACE Studio 11 December 2023 AR-DA-7005 (Rev. G) – Communal Open Space PLACE Studio 11 December 2023 AR-DA-8000 (Rev. C) – Building Entry PLACE Studio 18 March 2024 Landscape plans: DA-1996 Page 1 (Rev. D) – Title Page Captivate Landscape Design & Architecture 26 February 2024 DA-1996 Page 2 (Rev. D) – Planting Plan Captivate Landscape Design & Architecture 26 February 2024 DA-1996 Page 3 (Rev. D) – Level 4 & Planting Schedule Captivate Landscape Design & Architecture 26 February 2024 DA-1996 Page 4 (Rev. D) – Elevations Captivate Landscape Design & Architecture 26 February 2024 Concept stormwater plans: 22CSY341/SW1 (Iss. E) – Basement 2 Drainage Plan CSY Engineers 19 February 2024 22CSY341/SW2 (Iss. E) – Basement 1 Drainage Plan CSY Engineers 19 February 2024 22CSY341/SW3 (Iss. E) – Ground Floor Drainage Plan CSY Engineers 19 February 2024 22CSY341/SW4 (Iss. E) – Stormwater Drainage Details CSY Engineers 19 February 2024 22CSY341/SW5 (Iss. E) – Water Treatment Details CSY Engineers 19 February 2024 Concept construction plans: S1 (Rev. B) – General Notes -1- CSY Engineers 12 March 2024 S2 (Rev. B) – General Notes -2- CSY Engineers 12 March 2024 S3 (Rev. B) – Basement Shoring Plan CSY Engineers 12 March 2024 S4 (Rev. B) – Shoring Details CSY Engineers 12 March 2024 S5 (Rev. B) – Ground Floor Footing Plan CSY Engineers 12 March 2024 Geotechnical Investigation Report reference G23260-1 Geotechnical Consultants Australia Pty Ltd 10 July 2023 Hydraulic Fire Services Report Mike Jones 12 July 2023 (M & D Jones Fire Services Consultants) DBYD Plan Sydney Water Corporation 19 June 2023 Fire Brigade Appliance Access drawing reference MDJ-FB-1, Rev. 1 M & D Jones Fire Services Consultants 7 March 2024 Response to Outstanding Traffic Matters reference 22133 CJP Consulting Engineers 4 March 2024 Arboricultural Statement Jacksons Nature Works 19 December 2023 BASIX Certificate number 142868M_04 Greenview Consulting Pty Ltd 6 December 2023 NatHERS Certificate number 0008966770 Greenview Consulting Pty Ltd 6 December 2023 Updated Design Verification Statement Issue B Place Studio 4 April 2024 Design Quality Principles Issue B Place Studio 4 April 2024 1. The Applicant filed the amended development application in Court on 4 April 2024. 1. The Court orders that: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment to the development application in the agreed final sum of $20,000.00 to be paid within 28 days of these orders. 2. The appeal is upheld. 3. Development application number DA22/1154, as amended, for the demolition of existing structures and construction of a residential flat building on land identified as Lot 17 in Deposited Plan 14633 and Lot 18 in Deposited Plan 14633 and known as 32-34 Waratah Road, Engadine NSW 2233, is determined by the grant of development consent subject to the conditions included at Annexure A. D Dickson 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: 23 April 2024