Land and Environment Court New South Wales Medium Neutral Citation: Maher v Sutherland Shire Council [2018] NSWLEC 1608 Hearing dates: Conciliation conference on 19 – 20 November 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Class 1 Before: Walsh C Decision: See [20] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land Sutherland Shire Local Environmental Plan 2015 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Moskovich v Waverley Council [2016] NSWLEC 1015 Wehbe v Pittwater Council (2007) 156 LGERA 446 Category: Principal judgment Parties: Shannon Maher (First Applicant) Kim Lewise Maher (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: M Staunton (Respondent) Solicitors: C McFadzean, Swaab Attorneys (Applicants) Sutherland Shire Council (Respondent) File Number(s): 2018/00129649 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Sutherland Shire Council (Council) of development application DA17/1291 for alterations and additions to an existing dwelling and cabana, including a third storey addition (DA). The site is 3 Sanderson Street, Cronulla NSW 2230, also described as Lot 93 DP 19922 (site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation held on 19 and 20 November 2018. 2. At the conciliation conference and in related communication, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. 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. Acting in accordance with the parties' decision involves the Court exercising the decision making function under s 4.16 of the EPA Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. Below I reference the jurisdictional prerequisites. Clause 4.6 variation requests 1. The proposal involves two contraventions to development standards contained in Sutherland Shire Local Environmental Plan 2015 (SSLEP). These were in regard to height of buildings (cl 4.3) and landscaped area (cl 6.14). The applicants (via their planning advisors GLN Planning) have submitted two associated written requests seeking to justify each of the contraventions. Height of buildings 1. In order for development consent to be granted for a development that contravenes a development standard in SSLEP, I must be satisfied that the applicants' written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of SSLEP. These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)); and second, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). 2. In Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (Wehbe), a set of common "ways" in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary were identified. Here it is sufficient to consider only one of the "Wehbe Ways" addressed in the written request. This is the test of whether the objectives of the standard are achieved notwithstanding the proposal's non-compliance with the numerical standard. The written request worked through the particulars of the contravention in its spatial context, noting: (1) the height increase is 1.2m above existing (and for a portion of the building only) (2) the contravention of the standard is numerically minor, and (3) the moderate boundary setbacks for the contravention; especially in regard to the contravention's considerable setback to the front boundary (the building street frontage is prominent in the local streetscape, looking over Wanda Beach). The objectives of the standard are then juxtaposed with the context. It is argued that, consequently, the proposal is of a compatible scale with both adjoining development and the desired scale/character and the natural landscape. The other objectives relating to daylight access, minimising view loss, privacy impact, overshadowing and visual impact are also seen as achieved. 3. Based on the arguments in the written request, I am convinced that the objectives of the development standard are achieved notwithstanding the contravention and satisfied that the applicants' written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a), that is that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. 4. While noting what is seen to be the minor nature of the contravention, the written request also indicates certain benefits of the proposal including improving landscaping on the site. I am satisfied that the applicants' written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(b). 5. I can now turn to cl 4.6(4)(a)(ii) of SSLEP. This requires me to have a direct opinion of satisfaction that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. 6. I have reviewed the objectives of the height of building standard (cl 4.3) and the Zone R3 Medium Density Residential objectives listed in the land use table within SSLEP. In interpreting the term "consistent with", I am aided by other interpretive terms used previously in this Court such as "compatible" or "capable of existing together in harmony" or "not being antipathetic" (see Tuor C in Moskovich v Waverley Council [2016] NSWLEC 1015 at [53], where a number of cases are summarised). I am satisfied that the proposal is not antipathetic to the zone objectives, in particular having regard to the medium density environment characterised in the objectives. I am also satisfied that the proposal is not antipathetic to the height control objectives, with the points raised in the written request (outlined above) and the position adopted by the Council officers supportive here. Therefore I am satisfied that the proposal is in the public interest. 7. I consider briefly cl 4.6(4)(b) of SSLEP in regard to the question of concurrence of the Secretary (of the Department of Planning and the Environment) in instances of contravention of an LEP standard. When a matter is on appeal, the Court is not required to obtain the concurrence of the Secretary, however it should still consider the matters in cl 4.6(5) (see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [29]). I am satisfied with the findings in the written request that the contravention of the standard does not affect matters of State significance. I agree with this view and, mindful of cl 4.6(5)(b), do not see any particular public benefit from maintaining the development standard in this instance. Landscaped area 1. Clause 6.14 of SSLEP specifies a minimum percentage of a site to consist of landscaped area. For this site a landscaped area of 175.23m2 would be required in according to the 30% control. The site has a total landscaped area of 148.9m2. The proposal includes an extension to an existing cabana which would result in a reduction of a further 4.8m2 of landscaped area. 2. It is indicated in the GLN written request that the proposal would provide 5.75m2 of additional landscaped area within planter boxes on upper levels and would be provided two banksia trees as part of the rear garden planting. 3. The written request moves through the objectives of the standard arguing the change in landscaping will not compromise achievement of the standard's objectives. Noting its demonstration of overall compliance with the standard's objectives, something which might be expected given the overall increase in landscaping which is proposed, I am satisfied that written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a). That is that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. In regard to whether there are sufficient environmental planning grounds to justify the contravention, the written request notes an absence of material negative effects, as well as the additional planting including the Banksia trees. I am also satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(b). 4. I have reviewed the objectives of the landscape area standard (cl 6.14) and as indicated above, the Zone R3 Medium Density Residential objectives listed in the land use table within SSLEP. I have previously noted that I am satisfied that the proposal is not antipathetic to the zone objectives. I am also satisfied that the proposal is not antipathetic to the landscaped area control objectives, with the points raised in the written request and the position adopted by the Council officers of influence to me here. Therefore I am satisfied that the proposal is in the public interest. 5. For the same reasons as discussed in regard to building height I am also satisfied in regard to cll 4.6(4)(b) and 4.6(5) of SSLEP. Other jurisdictional questions 1. I also note State Environmental Planning Policy No 55—Remediation of Land. Clause 7(1) requires the consent authority to consider whether the land is contaminated. This question has been considered and the parties have satisfied me that no remediation would be required. Conclusion 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As there is no jurisdictional impediment to the application and the decision is one that the Court could make in the proper exercise of its functions, I must endorse the agreement reached by the parties at the conciliation conference held under s 34(3) of the Land and Environment Court Act 1979 (the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). These terms are outlined in the orders below. 3. The Court orders: 1. The Applicant is granted leave to rely on the amended drawings revision F dated 19 November 2018 annexed hereto and marked "A". 2. The clause 4.6 request to vary the landscaped area development standard in clause 6.14 of SSLEP prepared by GLN dated 23 September 2018, a copy of which is annexed and marked "B", is upheld. 3. The clause 4.6 request to vary the height of buildings development standard contained in clause 4.3 of SSLEP prepared by GLN dated 19 October 2018 a copy of which is annexed and marked "C" is upheld. 4. The appeal is upheld. 5. Development Application No. DA17/1291 for alterations and additions to an existing dwelling and cabana including a 3rd storey addition at 3 Sanderson Street Cronulla, is approved subject to the conditions annexed hereto and marked "D". ………………………. Peter Walsh Commissioner of the Court Annexure A (6.17 MB, pdf) Annexure B (5.04 MB, pdf) Annexure C (5.45 MB, pdf) Annexure D (207 KB, pdf) ********** 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: 04 December 2018