Land and Environment Court New South Wales Medium Neutral Citation: Duke Developments Australia 3 Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1176 Hearing dates: Conciliation conference on 29 March 2019 Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Class 1 Before: Smithson C Decision: See [18] below Catchwords: DEVELOPMENT APPLICATION: residential flat building; 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Duke Developments Australia 3 Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: P Vergotis, McCabe Curwood (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/251742 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Duke Developments Australia 3 Pty Ltd (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/0545 (the application). 2. The application as lodged sought consent under the EPA Act for the demolition of an existing older style residential flat building (RFB) and associated structures and construction (and strata subdivision) of a 5 storey new RFB at Lot 168 DP 8483 and SP 45473, known as 5-7 Burke Road, Cronulla (the site). 3. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, contentions raised by the Council regarding the application included: the density of the built form proposed which exceeded the floor space ratio (FSR) control at cl 4.4 of the Sutherland Shire Local Environmental Plan 2015 (the LEP): the design of the RFB; safety and security in terms of the entry; the residential amenity for future occupants including the adequacy of the communal open space having regard to the provisions of the Sutherland Shire Development Control Plan 2015 and State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), and the associated Apartment Design Guide; and the adequacy of the landscaping and waste management proposed. 4. 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. 5. Arising from the conciliation, the development was amended to address the contentions raised and in particular, the design and landscaping components. As a result of the amendments, an agreement was reached between the parties and filed with the Court under s 34(3) of the LEC Act. 6. As the presiding Commissioner, I was required under s34(3) to be satisfied that the decision sought by the parties was one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 7. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 8. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 9. The site is zoned R4 High Density Residential under the LEP and the use is permissible with consent in that zone. 10. The development complies with the core development standards in the LEP except in the exceedence of the maximum permissible height under the LEP of 16m. The development is to a maximum height of 16.7m in order to accommodate the lift overrun, and provide screening of the overrun and services located on the roof. 11. The applicant submitted a cl 4.6 written request seeking to justify the height breach. This was supported by the Council and submitted with the agreement. 12. I have reviewed and considered the cl 4.6 written request accompanying the agreement and am satisfied, for the reasons that follow, that it demonstrates that compliance with the maximum height required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Further, that the development will be in the public interest because it is consistent with the objectives of the height standard and for development in the R4 zone. 13. The concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5). 14. The reasons contained in the cl 4.6 written request in support of the height variation sought, on which my finding of satisfaction with the proposed variation is based, can be summarised as follows: 1. The development presents as a 5 storey RFB to the street, as is contemplated by the controls, is articulated, and generally complies with the required setbacks. 2. The FSR is not exceeded indicating that the height is not a result of additional floor space. Notwithstanding this, a range of dwelling sizes is proposed. 3. The development is compatible with newer RFBs in the street and will see the redevelopment of an older style RFB with limited amenity, therefore being compatible with the desired character of the area. 4. The development will improve the extent and quality of landscaping on the site, particularly in the front setback area to the street. 5. The variation to the height sought is minor and the exceedence will not be overtly visible from the street being in the centre of the building. 6. The majority of the building is below the height limit. 7. The development retains compliant solar access and privacy to adjoining developments as well as reasonable solar access to the public domain. The form and modern nature of the development will also enhance the public domain. 1. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP and raised in the SFC have been satisfied. 2. The development was amended to address concerns raised in terms of compliance with the design requirements of SEPP 65. 3. Finally, a Certificate was provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 4. Accordingly, the Court orders that: 1. The applicant is granted leave to amend the development application 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 as a result of the amended plans as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). 3. The applicant's written request pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 in relation to the development standard for height of buildings contained in clause 4.3 of that Plan is upheld. 4. The appeal is upheld. 5. Development application 18/0545 for the demolition of existing structures and construction of a residential flat building containing 17 apartments with 2 levels of basement parking for 29 vehicles at Lot 168 in DP 8483 and SP 45473 known as 5-7 Burke Road, Cronulla is determined by the granting of consent subject to the conditions in Annexure A. …………………………. Jenny Smithson Commissioner of the Court ********** 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: 16 April 2019