Land and Environment Court New South Wales Medium Neutral Citation: Landmark Group Australia Pty Limited v Sutherland Shire Council [2025] NSWLEC 1002 Hearing dates: Conciliation conference 11-12 December 2024 Date of orders: 06 January 2025 Decision date: 06 January 2025 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 sum of $10,000.00 within 28 days from the date of these Orders. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. DA24/0230 (as amended) to amend condition No. 58 under DA21/0629 to vary the allocation of affordable housing units within the approved development and to change some of the door and window openings, at 101-109 Willarong Road, Caringbah NSW 2229, subject to the conditions at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – residential apartment development – application to amend development application – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 29, 38 Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Housing) 2021, ss 16, 147, 148, Sch 9 State Environmental Planning Policy (Sustainable Buildings) 2022 Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.16, 6.17 Cases Cited: Caringbah Bowling & Recreation Club Ltd v Sutherland Shire Council [2023] NSWLEC 1305 Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Texts Cited: NSW Planning and Environment, Apartment Design Guide Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Landmark Group Australia Pty Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2024/235255 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Sutherland Shire Council (the Council) of development application DA24/0230 (the DA) which seeks approval to amend development consent DA21/0629, as modified (the earlier consent) which was granted for residential apartment development at 101-109 Willarong Road, Caringbah NSW 2229 (the site). 2. The DA seeks to amend the earlier consent in two primary ways: 1. Firstly, by amending a condition of consent imposed in respect of the allocation of units for affordable housing, so that the affordable rental housing supply provided by the development aligns to the provisions of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). 2. Secondly, amendments to door and window openings. 1. The matter was initially listed before me for hearing on 11 December 2024. However, on 4 December 2024, the parties advised the Court that they had reached in-principle agreement, and sought the matter to be re-allocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act). 2. The Court arranged a conciliation conference on 11 to 12 December 2024 at which I presided. 3. On the basis of the amended plans and other documents, and agreed conditions of consent, the parties reached agreement at the conciliation conference as to the terms of a decision in the proceedings that was acceptable to the parties. 4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 12 December 2024. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [38]. 7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 8. The site is located in the R4 High Density Residential zone, according to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), in which residential flat buildings are permitted with consent where consistent with the objectives of the R4 zone that are: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. • To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. • To minimise the fragmentation of land that would prevent the achievement of high density residential development. The Floor Space Ratio (FSR) standard is exceeded 1. The development proposed exceeds the floor space ratio (FSR) permitted on the site by a combination of cl 4.4 of the SSLEP and s 16 of the Housing SEPP which permits an additional 30% FSR where a minimum affordable housing component is achieved. 2. The parties agree, and I am satisfied, that more than 10% of the gross floor area (GFA) proposed in the development provides affordable housing within an accessible area, so that the bonus FSR may be obtained. 3. The Applicant relies on a written request prepared in accordance with cl 4.6 of the SSLEP and dated 24 October 2024 to justify the exceedance of the FSR standard that applies to the site. 4. The FSR standard that applied to the earlier consent is a function of the FSR of 1.2:1, permitted by cl 4.4 the SSLEP at the time of the earlier consent, with a bonus of 0.5:1 permitted by State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP). The maximum FSR permitted on the site at the time of the earlier consent was therefore 1.7:1. 5. The written request states the proposal now seeks to give effect to the FSR permitted by s 16 of the Housing SEPP by providing affordable housing that equates to 15% of the GFA of the development. In doing so, the GFA of the development, when expressed as FSR, will exceed the bonus of 30% permitted by s 16 of the Housing SEPP, but will not exceed the FSR of 1.7:1 approved by the earlier consent. 6. When expressed as an exceedance above the FSR of 1.56:1 permitted by s 16 of the Housing SEPP, the written request quantifies the exceedance as 1,522.36m2 of GFA, and asserts that compliance with the objectives of the FSR standard at cl 4.4 of the SSLEP is unreasonable or unnecessary as the objectives of the standard are achieved, notwithstanding the non- compliance. 7. The objectives of the FSR standard are as follows: (a) to ensure that development is in keeping with the characteristics of the site and the local area, (b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality, (c) to control development density and intensity of land use, taking into account— (i) the environmental constraints and values of the site, and (ii) the amenity of adjoining land and the public domain, and (iii) the availability of infrastructure to service the site, and (iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and (v) the desirability of retaining the scenic, visual, and landscape qualities of the area. 1. I am satisfied the objectives are satisfied for the reasons set out in the written request, summarised as follows: 1. As the proposal maintains the FSR approved by the earlier consent, there is no change to the manner in which the development is in keeping with the characteristics of the site or the local area. Likewise, the bulk and scale that was deemed to be compatible with the context and locality remains so. 2. The density and intensity of development on the site remains wholly within the R4 zone, and in an area undergoing transition. No additional overshadowing, view loss or privacy impacts result on adjoining land or the public domain as a consequence of the amendments now proposed. 3. As the density and intensity of the development remains substantially unchanged from the development the subject of the earlier consent, there is no change to the availability or capacity for local infrastructure to service the site, or to the demand generated by the development in terms of traffic and movement in the area, or in terms of the scenic qualities, visual or landscape qualities of the area. 1. I also accept and am satisfied that the eleven environmental planning grounds advanced in the written request are sufficient to justify the contravention of the FSR standard. Those grounds include, broadly, reliance on consistency by the development with the FSR approved by the earlier consent, absent any additional built form or amenity impacts, and consistency with the provisions of both the Affordable Housing SEPP and the Housing SEPP. To the extent the GFA exceeds that permitted by s 16 of the Housing SEPP, the full extent of that exceedance, being 1,522.36m2, is dedicated to affordable housing. The total GFA of affordable housing is therefore 4,371m2, or 21.4% of the overall GFA of the development. Additionally, the period of time that the affordable housing is to be so dedicated is also proposed to be extended from 10 years to 15 years. Finally, the proposal is consistent with certain objects of the EPA Act and aims of the Housing SEPP. 2. As I am satisfied of those matters about which the Court is required to be satisfied, pursuant to cl 4.6 (3) of the SSLEP, I find the written request should be upheld. 3. For similar reasons as those set out above, the height of the development is likewise proposed to be unchanged by the consent now sought. The similarity with the exceedance of FSR is explained by the operation of cl 4.3 of the SSLEP and the height bonus formerly available by the terms of the Affordable Housing SEPP, and the bonus now applicable at s 16(3) of the Housing SEPP. 4. The development, as proposed to be amended, does not alter the height of the development approved by the earlier consent, nor by a subsequent modification. The height at that time did not comply with the height of building standard of 16m, at cl 4.3 of the SSLEP. However, the earlier consent was supported by a written request as to height, prepared in accordance with cl 4.6 of the SSLEP. 5. For completeness, I note the height was subsequently modified by the Court: Caringbah Bowling & Recreation Club Ltd v Sutherland Shire Council [2023] NSWLEC 1305 (the later modification). I have considered the architectural plans the subject of the later modification. 6. The parties jointly rely upon the decision in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 (Landcorp), at [55], to the effect that the development as proposed in the DA is not development that contributes to or is altering the height of the building or buildings. As such, justification of the contravention is not required by a written request under cl 4.6 of the SSLEP. 7. That said, a written request prepared by Planning Ingenuity in accordance with cl 4.6 of the SSLEP, dated 11 December 2024, addresses the height exceedance, and provides reasons in respect of cl 4.6(3)(a) and (b) of the SSLEP as to why the exceedance achieves the objectives of the height standard, and environmental planning grounds that I accept are sufficient to justify the contravention. 8. In essence, the written request states that the exceedance the subject of the earlier consent was expressed as 10.408m above the height permitted by cl 4.3 of the SSLEP. That same height, proposed to be unchanged, is now expressed as an exceedance of 5.608m when the height bonus at s 16(3) of the Housing SEPP is considered. 9. As the development does not propose a change to the height of the development at any level, I accept that Landcorp demonstrates that justification of the contravention is not required by a written request under cl 4.6 of the SSLEP. Housing SEPP 1. As the proposal seeks a form of development consent for residential apartment development, s 147 of the Housing SEPP requires the Court to consider the quality of the design of the development in terms of the design principles at Sch 9 of the Housing SEPP, and in respect of the Apartment Design Guide. Subsection 147(1)(c) also requires to consider the advice of any design review panel in the event the relevant consent authority referred the development application to such a design review panel. 2. I understand the nature of the amendments for which consent is sought do not affect those non-discretionary standards at s 148 of the Housing SEPP. 3. I am assisted in considering those matters required to be considered at ss 147 and 148 of the Housing SEPP by a statement prepared by Mr Nicholas Byrne (Arch Reg No 7806) and dated 11 December 2024 (the design statement), in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) that attests Mr Byrne directed the design of the proposal, and sets out the means by which the design principles at Sch 9 of the Housing SEPP have been applied in the proposed development, and how the objectives in Parts 3 and 4 of the Apartment Design Guide are addressed. 4. In my view, the design statement also assists in addressing those matters to be considered at cll 6.16 and 6.17 of the SSLEP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Provisions of the Environmental Planning Policy (Resilience and Hazards) 2021 (Resilient SEPP) require that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. 2. The earlier consent considered the results of a Preliminary Site investigation and a Detailed Site Investigation undertaken on the site. The proposed development does not alter the extent of earthworks, nor footprint of built form that would disturb the satisfaction formed in the earlier consent. Accordingly, I am satisfied that the site is suitable for its proposed use as required by s 4.6 of the Resilience SEPP. State Environmental Planning Policy (Sustainable Buildings) 2022 1. The application is accompanied by a BASIX certificate (Cert No. 1205149_03 dated 27 November 2022) prepared by SLR Consulting Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022. Conclusion 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' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA24/0230 to include the documents set out in Annexure 'B'. 2. The reasons set out by the Council as to the grounds for reaching agreement are as follows: 1. The proposed development, subject to the recommended conditions, is consistent with the objectives of the applicable environmental planning instruments, being Sutherland Shire Local Environmental Plan 2015 and applicable State Environmental Planning Policies. 2. The proposed development is, subject to the recommended conditions, consistent with the objectives of the Sutherland Shire Development Control Plan 2015. 3. The proposed development is considered to be of an appropriate scale and form for the site and the character of the locality. The proposed development has appropriate management and mitigation of impacts through conditions of consent. 4. The proposed development, subject to the recommended conditions, will not result in unacceptable adverse impacts upon the natural or built environments. 5. The proposed development is a suitable and planned use of the site and its approval is within the public interest. 6. The proposed development provides affordable housing in accordance with the provisions of the Housing SEPP and will be required to be maintained for a period of 15 years. 7. All of the additional ground floor area beyond that allowed by the provisions of the Housing SEPP is agreed to be provided as affordable housing for a period of 15 years. Orders 1. 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 sum of $10,000.00 within 28 days from the date of these Orders. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA24/0230 (as amended) to amend condition No. 58 under DA21/0629 to vary the allocation of affordable housing units within the approved development and to change some of the door and window openings, at 101-109 Willarong Road, Caringbah NSW 2229, subject to the conditions at Annexure 'A'. T Horton Commissioner of the Court Annexure A Annexure B ********** 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: 06 January 2025