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868 Architects Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1556 (23 September 2021)

Last Updated: 23 September 2021

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 20/1093 by Sutherland Shire Council (hereafter the Council), which seeks the demolition of existing structures, and construction of a dwelling with a pool on Lot 46 in DP 223242, known as 17 Murray Island, Sylvania Waters (hereafter the site).

2 The DA was submitted to Council on 7 January 2021. After internal review, the DA was refused on 6 April 2021.

3 The Class 1 appeal of the determination to refuse the DA is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4 The Court agreed to a conciliation conference, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held by MS Teams.

5 The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA that contextualise the site.

6 The Council agreed for the applicant to amend the plans and documents, that support an amended DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended plans and documents were uploaded to the NSW Planning Portal on 14 September 2021.

7 Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council and issues raised by residents have been considered and are resolved. The decision of the parties is to uphold the appeal and seek grant of consent to DA 20/1093 with conditions.

8 Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to DA 20/1093, with conditions described in Annexure ‘A’.

9 In compliance with the requirements of State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55), the DA is supported by conditions of consent. The Council assesses the site is suitable as being historically been used for residential purposes and there is no history of contamination on the site.

10 The proposed development is required to comply with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent, and provided in compliance with the SEPP BASIX provisions.

11 The site is located within the R2 Low Density Residential Zone, pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development is permissible in this zone. The parties agree that the relevant objectives of the zone, as described in the SSLEP, are satisfied. The proposed development, as amended, satisfies the relevant provisions of the SSLEP, including numeric development standards.

12 The parties agree that the relevant requirements of State Environmental Planning Policy (Coastal Management) 2018 are satisfied. The proposed development has been designed, is sited and capable of being managed to avoid any adverse impact, in satisfaction of cl 14(1).

13 Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the Sutherland Shire Development Control Plan 2015 (SSDCP) are achieved to the satisfaction of the parties. The parties agree that the amended plans, together with amended supporting documents and agreed conditions of consent address any potential amenity impacts and view loss, that would warrant refusal of the DA. The amended development protects the adjoining resident’s view corridor and ensures that view sharing is reasonable. The amenity to adjoining residents is not adversely impacted.

14 The parties agree that the requirements of the SSDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the SSDCP. During the notification period for the DA, three submissions were received by Council. The parties agree that the issues raised by the objectors whom submitted during the notification period have been resolved by amendments made to the DA and advice of the experts.

15 Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. The parties also explain that there are no jurisdictional impediments to making the agreement or for the Court making the orders, as sought.

16 I am satisfied, based on the evidence before me, that there are no known jurisdictional impediments to this agreement and that DA 20/1093 should be granted, as it satisfies the requirements of s 4.15 of the EPA Act.

17 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

18 The Court notes:

(1) That the Sutherland Shire Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application (DA20/1093).

(2) That the Applicant on instruction from the Sutherland Shire Council has uploaded the amended application on the NSW planning portal on 14 September 2021.

(3) That the applicant has subsequently filed the amended application with the Court on 15 September 2021.

19 The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA20/1093 for the demolition of existing structures and construction of a two-storey dwelling and swimming pool at 17 Murray Island, Sylvania Waters, is approved subject to the conditions at Annexure A.

..............................

Sarah Bish

Commissioner of the Court

Annexure A (309112, pdf)

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