St George Community Housing Limited v Sutherland Shire Council [2015] NSWLEC 1514

Land and Environment Court New South Wales

Medium Neutral Citation: St George Community Housing Limited v Sutherland Shire Council [2015] NSWLEC 1514 Hearing dates: 8 December, 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. By consent, the appeal is upheld. 2. Development Application No. 15/0052 for two townhouses and one villa at 148 Kiora Road, Miranda, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibit 2, are returned. Catchwords: DEVELOPMENT APPLICATION: townhouse and villa development; affordable rental housing; consent orders. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: St George Community Housing Limited (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr A. Seton solicitor (Applicant) Ms J. Amy solicitor (Respondent) Solicitors: Marsdens Law Group (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10738 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. 15/0052 for the demolition of existing structures and construction of two townhouses and one villa (the proposal) at 148 Kiora Road, Miranda (the site) by Sutherland Shire Council (the Council). Prior to the hearing, the parties agreed to enter into consent orders. 2. In considering the parties' agreement to enter into consent orders, the Court's Practice Note – Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. Resident objectors were invited by letter, dated 24 November 2015 (exhibit 1), to attend the hearing and give evidence, however, no objectors attended. The letter advised the resident objectors that the parties intended to enter into consent orders and provided a copy of the proposed conditions of consent. The Council submits that the objections raised by the resident objectors regarding the proposal have been addressed by conditions of consent.