Caringbah Bowling & Recreation Club Ltd v Sutherland Shire Council [2023] NSWLEC 1305 (16 June 2023)

Last Updated: 16 June 2023

Land and Environment Court New South Wales

Case Name:	Caringbah Bowling & Recreation Club Ltd v Sutherland Shire Council
Medium Neutral Citation:	[2023] NSWLEC 1305
Hearing Date(s):	Conciliation Conference on 2 June 2023
Date of Orders:	16 June 2023
Decision Date:	16 June 2023
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Modification Application No MA22/0287 to increase floor to floor heights and minor changes to some areas of glazing on the façades with the introduction of nib walls, at 101-109 Willarong Road, Caringbah, modifies Development Consent No DA21/0629, subject to the consolidated conditions of consent at Annexure A.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Sutherland Local Environmental Plan 2015 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Caringbah Bowling & Recreation Club Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Cowper (Solicitor) (Applicant) T Ward (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2023/26367
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No MA22/0287 to increase floor to floor heights and minor changes to some areas of glazing on the façades with the introduction of nib walls (the proposal), to modify Development Consent No DA21/0629 (the development consent), at 101-109 Willarong Road, Caringbah (the site), by Sutherland Shire Council (the Council).
2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 June 2023. I presided over the conciliation conference. 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.
3. 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 4.55(1A) of the EPA Act to modify the development consent.
4. There are preconditions to the exercise of power to modify the development consent.

Amended Plans

5. The Council, as the relevant consent authority, has agreed under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending the application, lodged 2 December 2022, which seeks to modify the development consent granted on 4 February 2021 for the demolition of existing structures and construction of a mixed use development, new bowling club facility and 4 lot Stratum subdivision of the site, to incorporate the plans and documents listed in the consolidated conditions of consent at Annexure A.
6. As a result of the amendment of the plans and documents, the parties reached an agreement.

Jurisdictional pre-requisites

7. The site is zoned R4 High Density Residential pursuant to the Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The objectives of the R4 zone are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage the supply of housing that meets the needs of the Sutherland Shire’s population, particularly housing for older people and people with a disability.

• To promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features.

• To minimise the fragmentation of land that would prevent the achievement of high density residential development.

8. The application was made pursuant to s 4.55(1A) of the EPA Act. Subsection (1A) is in the following terms:

(1A) Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.

9. I accept the Council’s submission and I am satisfied that the proposal is of minimal environmental impact, because the proposal is minor, both qualitatively and quantitatively. For the same reason, I am satisfied that the proposal is substantially the same development for which consent was originally granted.
10. I accept the Council’s submission that the proposal is consistent with the design principles and the Apartment Design Guide under State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development 2002 (SEPP 65). The change to the floor to floor heights is necessary to achieve the minimum 2.7m floor to ceiling height in the residential apartments.

Conclusion

11. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 2 June 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

12. The orders of the Court are:
    • (1) The appeal is upheld.
    • (2) Modification Application No MA22/0287 to increase floor to floor heights and minor changes to some areas of glazing on the façades with the introduction of nib walls, at 101-109 Willarong Road, Caringbah, modifies Development Consent No DA21/0629, subject to the consolidated conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

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Annexure A

Annexure B