Land and Environment Court New South Wales Medium Neutral Citation: Mintilakis v Sutherland Shire Council [2024] NSWLEC 1358 Hearing dates: Conciliation conference on 13 June 2024 Date of orders: 27 June 2024 Decision date: 27 June 2024 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application DA22/0759, as amended, for the alterations and additions to the existing dwelling, comprising a new upper floor and other associated works at 409 Willarong Road, Caringbah South, is determined by the grant of development consent subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new dwelling – amended plans – 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, ss 34, 34AA Environmental Planning and Assessment Regulation 2001, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards), ss 2.10, 2.11, 4.6 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 6.1, 6.2, 6.4, 6.5, 6.9, 6.14, 6.16, 6.17. Cases Cited: Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 Category: Principal judgment Parties: Michael Mintilakis (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: P Vergotis (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Piper Alderman (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/335990 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Michael Mintilakis (the Applicant) against the refusal of Development Application No DA22/0759, by Sutherland Shire Council (the Respondent). The Development Application, lodged on 28 July 2022, seeks for the alterations and additions to the existing dwelling, comprising a new upper floor and other associated works at 409 Willarong Road, Caringbah South, legally described as Lot 5 in DP 701869. 2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 June 2024. 3. At the conciliation conference, an agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 5. 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). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP 2015), the subject site is zoned C4 Environmental Living wherein the proposed development is permitted with development consent. Regard has been given to the objectives of the zone in determining the Development Application. 2. The proposed development complies with the maximum height of buildings pursuant to cl 4.3 of SSLEP 2015 – Height of Buildings (HoB). The Applicant has provided sufficient material, including old photographs and survey information, to demonstrate relevant ground levels upon which to determine the Height of Building requirement. The parties are satisfied that this material has adequately established the ground level upon which to assess the height of the building and that the proposed works are within the SSLEP 2015 maximum height. 3. The requirements of cl 6.1 of SSLEP 2015 in respect to Acid Sulfate Soils have been considered. The parties agree that the proposed works are unlikely to lower the water table below 1.0 AHD on any land within 500m of Class 1, 2, 3 or 4 land classifications and therefore the matters required in cl 6.1 of the SSLEP 2015 do not apply and an Acid Sulfate Soils Management Plan is not required. 4. The requirements of cl 6.2 of SSLEP 2015 in respect to Earthworks have been met. The Development Application, as amended, proposes alterations and additions in the form of a new upper floor level and landscaping. There are no earthworks contemplated as part of the Development Application. 5. The requirements of cl 6.4 of SSLEP 2015 in respect to Stormwater Management, that require the consent authority to consider various matters, have been met. The development application, as amended, does not propose changes to the stormwater management and outcomes for the site. 6. Clause 6.5 of the SSLEP 2015 applies to the Land as it is identified as "Environmentally Sensitive Land" on the Terrestrial Biodiversity Map. The parties agree that the proposed alterations and additions to the existing dwelling do not include a proposal to remove any significant vegetation on the site and that the proposed works are unlikely to have an adverse impact on the flora and fauna and their habitat. 7. The site is also subject to the requirements Clause 6.9 - Limited Development on Foreshore Area. The Development Application does not propose any works beyond the foreshore building line. The parties agree that the proposed alterations and additions will not cause any environmental harm or otherwise alter the existing foreshore vegetation, watercourses or landforms. 8. The requirements of cl 6.14 – Landscaped Area have been considered. The Development Standard requires a minimum of 40% of the total site area to be landscaped and the proposal meets this requirement. The Applicant prepared a landscape plan to the satisfaction of the Respondent which provides for 41% of the site area as landscaped area. 9. The requirements of cll 6.16 and 6.17 – Urban Design General and Residential have been considered and the parties agree that the proposed outcomes, in the amended Development Application, satisfy these requirements. The parties agree that the alterations and additions to the existing dwelling represent a high design quality that is responsive to the existing natural landforms, including waterways, and to the adjoining development in the locality in terms of bulk, scale, height and size. 10. The parties have also considered view loss and agree that the Development Application, as amended, is now compliant with the height development standard under cl 4.3 of the SSLEP 2015. The parties agree that the Development Application as amended causes acceptable view loss impacts to neighbouring properties with regard to the amended Visual Impact Assessment prepared by Urbaine Architecture dated April 2024 and the principles set out in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140. 11. The Development Application was notified to adjoining and nearby owners and occupiers between 15 September 2022 and 29 September 2022. The parties are satisfied that the matters raised in the submissions have been adequately considered. Where appropriate, the concerns have been addressed in the amended application the subject to this agreement and the conditions in the Development Consent forming Annexure A. 12. A BASIX Certificate (Certificate No A379684_06) has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 13. Consideration has been given to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The Development Application as amended does not propose any clearing of native vegetation on the Land. The Court is satisfied that the parties have considered the requirements of Ch 2 of the Biodiversity and Conservation SEPP. 14. Consideration has been given to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021(Resilience and Hazards SEPP). This includes consideration, as required by ss 2.10 and 2.11, of the potential adverse impacts of the development on the coastal environmental area and the coastal use area. In respect to s 4.6, site contamination, it is noted that the proposal is for first floor additions and does not involve earthworks. 15. The parties agree that the land where the proposed alterations and additions are sought has historically been developed and is located some distance from the foreshore area of Port Hacking. Accordingly, it is not likely that there is significant Aboriginal Cultural Heritage requiring protection and maintenance. 16. The parties also agree that the proposed development is consistent with the surrounding streetscape and designed to avoid adverse impact on the coastal environment area surrounding the foreshore area. They agree that the development, situated within the coastal use area, has been designed, and will be managed, to avoid any adverse impacts on the ecology, visual amenity, environmental and cultural heritage of the coastal use area. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties' agreement. 2. 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. Conclusions 1. The Court notes: 1. that Sutherland Shire Council, as the relevant consent authority pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Development Application No DA22/0759 to rely upon the amended plans and documents as follows: Plan number Reference Prepared by Date 22_09 Amendment A Proposed Alterations and Additions to the Existing Residence JMH Living Design 9/04/2024 22_09 01-01 Site Plan JMH Living Design 9/04/2024 Amendment A 22_09 02-01 Lower Ground and Ground Floor Plans JMH Living Design 9/04/2024 Amendment A 22_09 02-02 Amendment B First Floor Plans JMH Living Design 15/05/2024 22_09 03-01 Elevations JMH Living Design 9/04/2024 Amendment A 22_09 04-01 Sections JMH Living Design 9/04/2024 Amendment A 22_09 06-01 Window & Door Schedules and Basix Certificate JMH Living Design 9/04/2024 Amendment A S34-AA Sheet 1 issue C Landscape Plan Context Plan Paul Scrivener Landscape 15.5.24 S34-AA Sheet 2 issue C Ground floor plan & First floor plan Paul Scrivener Landscape 15.5.24 S34-AA Sheet 3 issue C Elevations Paul Scrivener Landscape 15.5.24 1. The Court orders that: 1. The appeal is upheld. 2. Development Application DA22/0759, as amended, for the alterations and additions to the existing dwelling, comprising a new upper floor and other associated works at 409 Willarong Road, Caringbah South, is determined by the grant of development consent subject to the conditions set out in Annexure A. Stuart Harding Acting Commissioner of the Court 335990.23 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: 27 June 2024