Land and Environment Court New South Wales Medium Neutral Citation: Morgan v Sutherland Shire Council [2019] NSWLEC 1522 Hearing dates: Conciliation conference on 25 October 2019 Date of orders: 30 October 2019 Decision date: 30 October 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application to rely upon the amended plans and documents as set out in condition 1 of Annexure A and the amended clause 4.6 written request. (2) The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 (LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2B) of the LEP is upheld. (3) The appeal is upheld. (4) Development Application No DA18/0755 is determined by approving the subdivision of an existing allotment into two lots and construction of an attached dual occupancy development on Proposed Lot 2 with Torrens Title Subdivision of the new dual occupancy at Lot 18 of DP 23446, known as 6 Rossford Avenue, Jannali subject to conditions of consent as set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – dual occupancy and subdivision of land – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Jennifer Dianne Morgan (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2019/58272 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal following the refusal by Sutherland Shire Council of a development application for the subdivision of an existing lot at 6 Rossford Avenue, Jannali and the construction of a dual occupancy on one of the subdivided lots (proposed Lot 2), together with Torrens title subdivision of the new dual occupancy. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 ("LEC Act"). The conciliation conference commenced on 25 October 2019. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application is for a two storey dual occupancy that is reduced in height from that which was originally proposed, with reduced floor levels above the natural ground lines to as to minimise sub-floor areas. The rear part of the proposed dual occupancy is single storey. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development works are for the purposes of a dual occupancy, which is a permissible use in the R2 Low Density Residential zone pursuant to the Sutherland Shire Local Environmental Plan 2015 ("SSLEP 2015"). The subdivision of land is permissible with consent pursuant to cl 2.6 of the SSLEP 2015. * I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 5.4m, pursuant to cl 4.3(2B) of the SSLEP 2015, which applies to an internal lot in Zone R2 Low Density Residential regardless of the height development standard of 8.5m applicable to the area by height of buildings map referred to in cl 4.3(2). The dual occupancy will have a maximum height of 6.872m, and will exceed the height limit by a maximum of 1.472m. I am satisfied that the written request, lodged pursuant to cl 4.6 of SSLEP 2015 adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the lot is not typical of the internal lot configuration that cl 4.3(2B) seeks to address and that the breach allows the dual occupancy to have two storeys and therefore achieve consistency with the desired character of the street and locality. I am also 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 the non-compliance, and as there is negligible impact caused by the breach of the standard. Further, I am satisfied, based on the content of the cl 4.6 request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. * The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 1. 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 requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The applicant is granted leave to amend the development application to rely upon the amended plans and documents as set out in condition 1 of Annexure A and the amended clause 4.6 written request. 2. The Applicant's written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 (LEP) seeking a variation of the development control for height of buildings set out in clause 4.3(2B) of the LEP is upheld. 3. The appeal is upheld. 4. Development Application No DA18/0755 is determined by approving the subdivision of an existing allotment into two lots and construction of an attached dual occupancy development on Proposed Lot 2 with Torrens Title Subdivision of the new dual occupancy at Lot 18 of DP 23446, known as 6 Rossford Avenue, Jannali subject to conditions of consent as set out in Annexure A. …………………………… J Gray Commissioner of the Court Annexure A (267 KB) Plans (8.50 MB, pdf) ********** Amendments 10 February 2020 - Plans attached to judgment. 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: 10 February 2020