MBC President Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1402 (1 September 2020)

Last Updated: 1 September 2020

Land and Environment Court New South Wales

Case Name:	MBC President Pty Ltd v Sutherland Shire Council
Medium Neutral Citation:	[2020] NSWLEC 1402
Hearing Date(s):	Conciliation conference on 14 August 2020
Date of Orders:	01 September 2020
Decision Date:	1 September 2020
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court Orders: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of the Conditions of Consent at Annexure ‘A’. (2) The Appeal is upheld. (3) Development Application 19/0896 for the demolition of existing structures and the construction of 8 dwellings and associated landscaping to create a multi dwelling development with Strata subdivision at 6-8 Durbar Avenue, Kirrawee, is determined by granting development consent to the application subject to the conditions set out in Annexure ‘A’. (4) The Applicant is to pay the Respondent’s costs in the agreed amount of $4,500.00 pursuant to s8.15(3) of the Environmental Planning & Assessment Act, 1979.
Catchwords:	DEVELOPMENT APPEAL – conciliation conference – multi dwelling development – strata subdivision – 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Sutherland Shire Local Environmental Plan 2015
Texts Cited:	NSW Department of Planning's Development near Rail Corridors and Busy Roads - Interim Guideline
Category:	Principal judgment
Parties:	MBC President Pty Ltd ACN 624931040 (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2020/7512
Publication Restriction:	Nil

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA19/0896 seeking development consent for the demolition of existing structures, with the construction of eight townhouses (three x two-storey and five x three-storey), basement carparking consisting of 15 residential spaces and 2 visitor spaces and strata subdivision (the Proposed Development) of 6-8 Durbar Avenue, Kirrawee legally known as Lot 11 and Lot 12 in Deposited Plan 9792 (the Site).
2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on Friday, 14 August 2020. I have 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 involved seeking leave to rely on amended plans, upholding the appeal, costs and granting development consent to the development application subject to conditions.
4. The amendments relate to removing all three-storey elements to the Proposed Development resulting in eight x two-storey townhouses, improvements to landscaping in particular to the central courtyard, design changes to unit 3 to ensure alignment with the driveway and improvements to the front streetscape addressing issues of landscaping, the OSD and the general appearance of individual residential dwellings.
5. 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.
6. 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 and they explained how the jurisdictional prerequisites have been satisfied in an agreed statement provided during conciliation conference. These are as follows:

(1) Sutherland Shire Local Environmental Plan 2015 (SSLEP):

(a) Land Use Table - the land is zoned R3 (Medium Density Residential).

(b) Clause 2.1 – 2.3 - The proposed development is permissible with consent in the R3 (Medium Density Residential) Zone.

(c) Clause 4.3 (Height) – The proposal does not exceed the maximum height shown for the land under cl 4.3(2) and the consent authority has considered that the development meets the objectives of this clause.

(d) Clause 4.4 (FSR) – Under cl 4.4 the maximum allowable FSR is 0.7:1. The proposed gross floor area is 787.9m2, which is an FSR of 0.69:1 and therefore the development complies with this control and meets the objective of this clause.

(e) Clause 6.2 (Earthworks) – The lots comply with the earthworks development standards.

(f) Clause 6.4 (Stormwater Management) – The proposal is supported by documentation and specialist reports that have taken into account the requirements of the objectives contained under cll 6.4(1),(2) & (3)(a)-(c) and the consent authority has considered that the development meets the objectives of this clause and is satisfactory subject to recommended conditions of consent.

(g) Clause 6.14 (Landscaped areas in certain zones) – The proposal achieves compliance with this development standard. The assessment of the proposed development has considered the matters raised under cll 6.14(1)(a)-(d) & (2)(b) (Zone R3 Medium Density Residential) and 6.14(3) and the objectives of this clause are satisfied.

(h) Clause 6.16 (Urban Design-general) – The proposal achieves compliance with this development standard. The assessment of the proposed development has considered the matters raised in cll 6.16(1)(a)-(g) & 6.16 (2) and the objectives of this clause are satisfied.

(i) Clause 6.17 (Urban Design-residential accommodation) – The proposal achieves compliance with this development standard. The assessment of the proposed development has considered the matters under cll 6.17(a)-(g) and the objectives of this clause are satisfied.

(2) State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

(a) Under cl 7(1)(a) of SEPP 55, consideration has been given to whether the land is contaminated. The application does not require further consideration under cl 7(1)(b) and (c) of SEPP 55 and consent authority has considered that the development meets the objectives and requirements of this legislation.

(3) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX) applies to the proposed development. The applicant provided an updated BASIX certificate. The fulfilment of the commitments listed in the BASIX certificate is a prescribed condition under cl 97A of the Environmental Planning & Assessment Regulation 2000.

(4) State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure)

(a) The SEPP Infrastructure has been considered by the Respondent.

(b) Consideration of the impact of road noise or vibration (Clause 102) – Division 17, Subdivision 2 of the SEPP Infrastructure is required in relation to development that may be impacted by road noise or vibration. This application is for residential accommodation and the Site is identified on Council’s Road and Rail Noise Buffer Map. The impact of road noise and vibration on the residential accommodation have been considered by Council and conditions of consent are to be imposed addressing the relevant acoustic criteria and NSW Department of Planning's Development near Rail Corridors and Busy Roads - Interim Guideline. Subject to conditions, suitable noise attenuation measures can be incorporated into the design of the buildings and an acceptable acoustic environment and reasonable amenity will be achieved for future occupants.

(c) The application addresses the requirements of SEPP Infrastructure and the consent authority has considered that the development does not require further consideration under this legislation.

7. Notification requirements under the EPA Act have been satisfied and submissions that were received have been relevantly considered and satisfactorily addressed via the submission of amended plans and documentation.
8. 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. I have formed this state of satisfaction for the following reasons:

(1) In relation to SSLEP, I note that in addition to the explanation provided by the parties in paragraph [6](1)(a) to (i) above I have read the Statement of Facts and Contentions filed 25 February 2020, the conditions of consent and the dimensions and calculations shown in the amended plans and having read these documents I am of the view that the Proposed Development complies with the relevant controls in the SSLEP.

(2) Clause 7 of SEPP 55 requires the Court as consent authority to not grant consent to the carrying out of any development on land unless it has considered whether the land is contaminated. I have considered whether the Site is contaminated by a review of the Statement of Environmental Effects (SEE) dated November 2019 prepared by Wynne Planning. I considered that at pages 18, 30 and at Appendix B on 41 under the heading State Environmental Planning Policy No. 55 – Remediation of Land, the SEE concludes variously as follows:

“The site does not contain contaminated land and does not require remediation works (at page 18)
The site [...] is not prone to contamination (at page 30)
The subject site does not contain contamination. Accordingly the proposed use is considered suitable.”

(3) In that regard, I find that the Proposed Development seeks consent to demolish existing structures which in Appendix A of the SEE there are a number of photographs including Photo 3 at page 35 which depicts two residential dwellings which are described at page 9 as follows:

“Existing development on site: The site currently contains two single dwellings with detached ancillary structures to the rear.”

(4) Further, at paragraph 2.3 page 9 of the SEE there is a direct reference to the history of the Site and confirms that there have been no recent Development applications on this Site. During the conciliation conference, the Respondent has provided written confirmation that

“A search of Council’s records, including GIS, historical files, and Council’s contaminated land register identifies that the site is not potentially contaminated.”

(5) Considering the information summarised above, I am of the view that the Site poses no risk of contamination and therefore, no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for the residential land use.

(6) In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, I have reviewed BASIX Certificate number 1050293M filed 13 January 2020 which together with the explanation provided by the parties above at paragraph [6](3) that an updated BASIX certificate, referred to in consent conditions 1 and 12A, has been provided leads me to form the view that the requirements of this SEPP have been satisfied.

(7) The SEPP Infrastructure relevant provision cl 102 provides that

(2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette.
(3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,
(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

(8) In addition to the explanation provided by the parties at paragraph [6](4) above I have referred to the conditions of consent and note that consent conditions 23, 24 and 25 all refer to the acoustic report by Accouras Consultancy dated 31 October 2019 and these condition adequately address noise control in compliance with cl 102 of SEPP Infrastructure and I am therefore satisfied that appropriate measures will be taken.

(9) Finally, notification of the Proposed Development was undertaken as required by the EPA Act as set out in the Statement of Facts and Contentions filed 25 February 2020. There were two written submissions which objected primarily to the three-storey aspect and the impacts thereof as proposed in the original development application. I accept that as the amended plans satisfactorily address these concerns no further notification is required.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
10. The Court orders:

(1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of the Conditions of Consent at Annexure ‘A’.

(2) The Appeal is upheld.

(3) Development Application 19/0896 for the demolition of existing structures and the construction of 8 dwellings and associated landscaping to create a multi dwelling development with Strata subdivision at 6-8 Durbar Avenue, Kirrawee, is determined by granting development consent to the application subject to the conditions set out in Annexure ‘A’.

(4) The Applicant is to pay the Respondent’s costs in the agreed amount of $4,500.00 pursuant to s8.15(3) of the Environmental Planning & Assessment Act, 1979.

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E Espinosa

Commissioner of the Court

Annexure A (319564, pdf)

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