Land and Environment Court New South Wales Medium Neutral Citation: Dickson v Sutherland Shire Council [2020] NSWLEC 1100 Hearing dates: Conciliation conference on 14 February 2020 Date of orders: 05 March 2020 Decision date: 05 March 2020 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) Leave is granted to the Applicants to rely upon the amended plans listed in Condition 1 at Annexure 'A' and the written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 entitled "Updated Clause 4.6 Variation" and dated January 2020 (cl 4.6 Request). (2) The Applicants' cl 4.6 Request seeking a variation of the development control for the height of buildings set out in clause 4.3 of the LEP is upheld. (3) The appeal is upheld. (4) Development Application DA18/1362 for the alterations and additions to the existing dwelling, demolition of the existing swimming pool and the construction of a new swimming pool at Lot 46 DP 14986, 399 Willarong Road, Caringbah South is approved in accordance with the amended plans listed in Condition 1 of Annexure 'A' and subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – 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 Sutherland Shire Local Environmental Plan 2015 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Gregory John Dickson (First Applicant) Sharon Harcourt Jones (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Dr S Berveling (Applicants) J Amy (Solicitor) (Respondent) Solicitors: WMD Law (Applicants) Sutherland Shire Council (Respondent) File Number(s): 2019/201076 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal by Gregory Dickson and Sharon Jones (the Applicants) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/1362 (the application). 2. The application proposes alterations and additions to an existing dwelling, and demolition of an existing swimming pool and construction of a new swimming pool, at Lot 46 DP 14986, 399 Willarong Road, Caringbah South (the site). 3. The application was notified but no objections to it were lodged. 4. The site is a waterfront internal lot of 1827m² and is adjoined by 7 residential properties. It is battle-axe shaped with a Right of Carriageway to Willarong Road and a southern side boundary of 229.5m to the High Water Mark of Port Hacking. The site slopes some 48m from the street boundary to the waterway and contains rock outcrops and a number of mature trees. Existing improvements include a 2 storey dwelling house, a garage, a tennis court, a swimming pool, an inclinator, and a boathouse and jetty. 5. The site is zoned Environmental Living E4 under the provisions of the Sutherland Shire Local Environmental Plan 2015 (the LEP), as are immediately adjacent properties. The existing and proposed development is permissible in the E4 zone. Development on the site is subject to compliance with a foreshore building line (FBL) established under the LEP. 6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 7. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 8. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 9. In making the orders, I am not required to make a merit assessment of the development 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. 10. In this regard, the height proposed in the original application breached the maximum permissible height of 8.5m under cl 4.3 of the LEP. A written request to vary the maximum permissible height at cl 4.3 was submitted as is required by cl 4.6 of the LEP (the request). The request sought to justify the height contravention in order for consent to be granted. 11. The application as lodged also did not comply with the minimum landscaped area of 40% required by cl 6.14 of the LEP nor with the required FBL controls at cl 6.9. 12. The development also did not comply with a number of provisions of the Sutherland Shire Development Control Plan 2015 (the DCP). This included various height related controls, the proposed increase in the number of storeys from 2 to 3 (including relative to the depth of the site), and the proposed cut and fill, deep soil landscaping and garage side setback. 13. The Council did not raise a concern with the LEP height contravention given it was required in order not to excavate an existing rock outcrop on the site which the Council sought to retain. However, in the Statement of Facts and Contentions (SFC) filed with the Court, contentions raised by the Council related to the height and location of the proposed garage, insufficient landscaping, and the design's response to the landform in terms of the fill required and the visual, acoustic and privacy impacts of the proposed rebuilt pool, associated deck, and the breezeway connection to the dwelling. 14. As a result of conciliation, the application was amended and conditions proposed to address these concerns. This included amendments to the height and design of the garage, pool and pool deck area, and removal of the existing tennis court. The tennis court's removal enables an increase in the amount of landscaping provided, meeting the LEP landscaped area requirement and assisting in screening the pool deck and breezeway. The amended application also addresses the fill concerns of the Council with no changes to the existing landform now proposed. It was agreed that the redesign and proposed conditions of consent also address privacy concerns and the requirements of the FBL. 15. In support of the amended application, which still breaches the overall permissible maximum height, an amended cl 4.6 request was submitted and attached to the agreement. 16. I have reviewed and considered that request and am satisfied, as I am required to be under cl 4.6, 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 the E4 zone. 17. The reasons on which my finding of satisfaction on the proposed variation is based, largely as summarised from the request, are as follows: 1. The proposed development is generally less than 8.5m in height and is stepped down the steep site, however has a maximum building height of 9.38m (a 10.35% variation to the standard); 2. The proposal reflects the design of surrounding dwellings in terms of responding to the steep topography of the site and area, and is generally of a similar bulk and scale to those dwellings. The scale of the building form, particularly in the areas where minor height breaches occur, will therefore be compatible with adjoining development; 3. The proposal does not result in unreasonable adverse environmental impacts and the numerically non-compliant portion of the development will have no unreasonable impacts when viewed from the public domain or adjacent development; 4. The proposed height of the breezeway minimises impacts to landform whereas requiring height compliance would adversely affect the rock outcrop; and 5. The height breach has no implications in terms of the development now achieving compliance with other applicable LEP standards, such as FSR and landscaped area. 1. In this regard, in addition to compliance with cl 4.6, I am satisfied that the applicable pre-conditions to consent contained in the LEP have been met. 2. Finally, a Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 3. Accordingly, the Court orders that: 1. Leave is granted to the Applicants to rely upon the amended plans listed in Condition 1 at Annexure 'A' and the written request under clause 4.6 of the Sutherland Shire Local Environmental Plan 2015 entitled "Updated Clause 4.6 Variation" and dated January 2020 (cl 4.6 Request). 2. The Applicants' cl 4.6 Request seeking a variation of the development control for the height of buildings set out in clause 4.3 of the LEP is upheld. 3. The appeal is upheld. 4. Development Application DA18/1362 for the alterations and additions to the existing dwelling, demolition of the existing swimming pool and the construction of a new swimming pool at Lot 46 DP 14986, 399 Willarong Road, Caringbah South is approved in accordance with the amended plans listed in Condition 1 of Annexure 'A' and subject to the conditions in Annexure 'A'. ………………………. Jenny Smithson Commissioner of the Court Annexure A (95.9 KB) ********** 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: 05 March 2020