Land and Environment Court New South Wales Medium Neutral Citation: Traders in Purple 112 Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1075 Hearing dates: Conciliation conference on 8 February 2019 Date of orders: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [16] below Catchwords: DEVELOPMENT APPLICATION: multi-dwelling development; heritage; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Traders in Purple 112 Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: J Palmer, Pikes & Verekers Lawyers (Applicant) J Amy, Sutherland Shire Council (Applicant) File Number(s): 2018/259504 Publication restriction: No Judgment 1. COMMISSIONER: The site for this appeal is known as 12-14 Wilshire Avenue Cronulla and legally described as Lots A & B in DP 303739 and Lots 13 & 15 in DP 6585. 2. Development Application DA17/0969 (DA) sought demolition of some existing structures and the construction of a multi-dwelling development on the site containing 7 dwellings including adaptive re-use of an existing heritage-listed church building and a 7 lot strata subdivision. 3. On 8 June 2018, the DA was approved by Sutherland Shire Council (Council) subject to deferred commencement conditions as follows: "The following design changes must be implemented and submitted to Council for approval: i. As indicated by a red box on approved drawings DA20, DA21 and DA22, the void over the living room must be reduced in height. The top of the roof over the void must be no greater than RL24.70. ii. The Level 1 of Dwelling 4 must be removed." 1. While the appeal is against these conditions, there is no dispute that the matter came before the Court 'de novo' (s 39(3) of the Land and Environment Court Act 1979 (LEC Act)). 2. The Court arranged a conciliation conference between the parties under s 34(1) of the LEC Act, which has been held on 8 February 2019. I presided over the conciliation conference. 3. At the conciliation conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision was for the grant of development consent, subject to conditions. The conditions involve revised plans which address the deferred commencement conditions to the satisfaction of the Council. The fact of the agreement also indicates that Council is satisfied with the merits of the application before the Court more generally. 4. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be twofold: (1) in regard to a non-compliance with a development standard in Sutherland Shire Local Environmental Plan 2015 (SSLEP) relating to landscaped areas; and (2) in regard to heritage assessment provisions in the SSLEP. I consider these jurisdictional questions in turn below. 5. The relevant development standard would require 35% of the subject land to consist of landscaped area. The definition of landscaped area in the SSLEP is as follows: Landscape area means, a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area. 1. The evidence indicates some 85 m² of the site's landscaped area occurs over the basement parking structure. While this area is able to be grassed, it can be considered that it warrants exclusion from the landscaped area under the definition. If this area is excluded the landscape area for the site would equate to 31%, making it non-compliant. 2. Clause 4.6 of the SSLEP provides for the contravention of this standard if certain pre-requisites are met. A threshold pre-requisite is the submission of a written request seeking to justify the contravention. In this instance a written request has been provided by Planning Ingenuity Pty Ltd dated 11 February 2019. I have considered this written request. 3. I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the contravention of the landscaped area standard. It argues that grassed areas have a role to play in landscape schemas for redevelopments of this kind and how extending the basement parking (which brings about the reduction in deep soil area) is one of the project's design responses to retention of the heritage listed church. The written request also works through the objectives of the landscaped area standard and provides particulars to justify achievement of each objective notwithstanding the breach. I am in turn satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard, notwithstanding non-compliance. Further I am satisfied including having a mind to: (1) the reasons outlined in the written request, and (2) Council's advice to the Court (dated 15 February 2019) outlining its support for the landscaped area non-compliance in the circumstances (describing a "high quality landscape" setting with the project and good curtilage around the heritage item); that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 4. I now turn to the second jurisdictional pre-requisite in regard to heritage. The site is occupied by a heritage listed church. Under cl 5.10(4) of the SSLEP a consent authority must, before granting consent under this clause in respect of a heritage item, consider the effect of the proposed development on the heritage significance of the item concerned. At the conciliation conference the parties described to me that retention of the heritage building was a central feature of the proposal, with detailed conditions concerned with retaining and minimising impact on heritage values. Changes to the plans were also indicated which are seen to incorporate an improved relationship between new construction and the heritage-listed church. The required consideration to the heritage significance of the item has been given. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision 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). 6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders below have this effect. 7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application. 8. The Court orders that: 1. The applicant is granted leave to rely upon the amended plans referred to in condition 1 of annexure "A". 2. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $2,000. 3. The Applicant's written request pursuant to cl 4.6 of Sutherland Shire Local Environmental Plan 2015 ("SSLEP") in relation to the development standards for landscaped area contained in cl 6.14 of SSLEP is upheld. 4. The Appeal is upheld. 5. Development application DA 17/0969 for demolition of existing structures and construction of a multi dwelling housing development comprising seven dwellings and incorporating the adaptive reuse of a heritage listed church building, associated landscaping, basement parking and drainage works at 12-14 Wilshire Avenue, Cronulla is approved subject to the conditions at annexure "A". ……………………….. P Walsh Commissioner of the Court Annexure A (527 KB, pdf) Plans (4.16 MB, 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: 26 February 2019