Cronulla Esplanade Pty Ltd v Sutherland Shire Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.17, 8.7, 8.15
Land and Environment Court Act 1979 (NSW), s 34
Environmental Planning and Assessment Regulations 2021 (NSW), ss 23, 38, 67, 97
State Environmental Planning Policy (Housing) 2021, Ch 4, 6, ss 8, 144, 147, 148, 163, 175, 177, 180, Sch 9
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2021, Ch 2, s 3.2
Sutherland Shire Local Environmental Pan 2015, cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.14, 6.16, 6.17

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015
Sutherland Shire Development Control Plan 2015
NSW Department of Planning, Housing and Infrastructure, Tree Canopy Guide for Low and Mid Rise Housing 2025, February 2025

Category: Principal judgment

Parties: Cronulla Esplanade Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
J Oldknow, solicitor (Applicant)
J Amy, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/386613

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of development application DA 25/0478. As amended the development application seeks consent for alterations and additions to the residential flat development approved under DA 21/0628. Those alterations and additions are to add an additional level and a communal roof terrace as well as to seek consent for strata subdivision. The development is proposed at 34 The Esplanade, Cronulla (SP 2435).

2. A conciliation conference was held between the parties in November 2025 and despite the Court providing additional time, no agreement was reached between the parties and the matter was listed for hearing. Prior to the hearing an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the Land and Environment Court Act 1979 (NSW) (LEC Act) was filed with the Court on 17 December 2025.

3. As the presiding Commissioner, I am satisfied that the decision is one 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). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged with the consent of the owners of the land which is included in the filed Class 1 Application: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

5. The development application was publicly notified between 1-16 September 2025. Eighteen submissions were received by the Respondent, five submissions expressed support for the development. The objections raised included the lack of applicability of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), as the site is not within 200m of Cronulla Railway Station, the building height exceedance and detrimental impacts on amenity and privacy to adjoining properties. At the conciliation conference the Court was also addressed by a member of the public who detailed concerns about the proposed development. The plans proposed for approval in this judgment have been amended and additional information provided, in part, in response to the concerns raised by submissions. I accept the agreement of the parties that renotification of the amended development application is not required as the amendments reduce any environmental impacts of the proposed development. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: subs 4.15(1)(d) of the EPA Act.

6. The development application is subject to the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) as the location of the proposed works is within the mapped Coastal Use Area and partly within the Coastal Environmental Area. Chapter 2 of SEPP RH applies. Sections 2.10 and 2.11 apply to the development application. Those provisions provide that the consent authority must not grant consent to development on land within a ‘Coastal Use Area’ and within the ‘Coastal Environmental Area’, unless it has considered with the development is likely to cause and adverse impact on the listed matters and is satisfied that the development is designed to avoid any adverse impacts.

7. The site is also mapped as being within the Coastal Zone pursuant to SEPP RH. Sections 2.12 and 2.13 of SEPP RH provide that a consent authority must not grant consent to development in the coastal zone unless it is satisfied that the proposed development is not likely to cause an increased risk of coastal hazard.

8. I accept the agreed submission of the parties that it is appropriate to consider the preceding sections of SEPP RH in the context of the scope of the development sought in this development application. As detailed at [1] this development application seeks approval for alterations and additions to an already approved development. I am persuaded that those changes do not directly bear on the matters listed at ss 2.12 and 2.13 and the risk of coastal hazard. I find, after considering the requirements of ss 2.10, 2.11, 2.12 and 2.13 that the provisions are satisfied.

9. Section 4.6 of SEPP RH requires a consent authority to consider the contamination of land when determining a development application. The historical use of the site was as for residential purpose. The parties agree, and I accept, that there is no evidence indicating the site may be contaminated. Further, the use of the site is proposed to remain as residential. On the basis of the preceding, and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under this application.

10. The development application is subject to the provisions of SEPP Housing in two parts. Firstly, at Ch 4 as it proposes residential flat development (and meets the matters at s 144(3)), and secondly at Ch 6 as the development is proposed in a ‘low to mid rise housing inner area’ as mapped by the instrument.

11. Section 147, in Ch 4 of SEPP Housing mandates that the consent authority consider three matters. Firstly, the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Sch 9 the Housing SEPP. Secondly, the Apartment Design Guide (ADG) and thirdly, any advice received from a design review panel within 14 days of the referral of the matter to them. The development application is accompanied by a design verification statement from Artmade Architecture (nominated architect Sherif Saad). With the benefit of those documents and reviewing the plans, I have considered the design principles and the ADG and accept the agreement of the parties that those matters have been addressed by the amended development application. The development application was not referred to the Sutherland Design Review Panel.

12. Section 148(2) of SEPP Housing contains several non-discretionary development standards which are met by the development application as follows:

(i) As required by subs (a) the development application complies with the car parking requirements of Sutherland Shire Development Control Plan 2015. (ii) As required by subs (b) the new apartment has an area of 222m², complies with the ADG. (iii) The development application meets the minimum ceiling requirements of 2.7m as required by subs (c).

10. I am satisfied that the requirements of Ch 4 of SEPP Housing are met.
11. Pursuant to s 163 of SEPP Housing, the site is within a low and mid rise housing inner area as it is within 400m walking distance of the mapped bounds of Cronulla Town Centre under the instrument.
12. The proposed development will result in a 6-storey building, with a maximum height of 22.2m. The Applicant relies on a request to vary the 22m height development standard.
13. I find that:

(a) the '6-storey' development standard in s 175(2) of SEPP Housing applies to the development application and is satisfied by the amended plans. (b) The '22m maximum building height' non-discretionary development standard in s 180(2)(b) of the Housing SEPP is engaged in relation to the development application. The maximum height proposed is 22.2 m and the development application relies on a written request to vary the standard pursuant to cl 4.6 of Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The height written request prepared by Planning Ingenuity filed with the Court in January 2026 adequately addresses the breach of 0.200m pursuant to cl 4.6 of LEP 2015 is well founded. I accept that the written request has demonstrated that there are sufficient environmental planning grounds and that compliance is unnecessary or unreasonable. (c) The development application results in a maximum floor space ratio ('FSR') of 1.76:1 which satisfies the non-discretionary development standard of 2.2:1 at s 180(2)(a) of the SEPP Housing.

14. In determining the development application, I have considered the ‘Tree Canopy Guide for Low and Mid Rise Housing’ (the Guide), published by the Department in 2025. I accept the agreed submission of the parties that the quantum of deep soil planting. Canopy cover and provision for tree planting in the site setbacks is consistent with the Guide. Section 177 of SEPP Housing is satisfied.
15. The development application is for BASIX development. Accordingly, Ch 2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings) applies to the development application. The development application, as amended, is accompanied by an (updated) BASIX Certificate, which quantifies the embodied emissions attributable to the development in accordance with s 3.2(2) and Sch 1 of SEPP Sustainable Buildings. The requirements of Ch 2 of SEPP Sustainable Buildings are satisfied.
16. Pursuant to LEP 2015 the site is zoned R4 High Density Residential. Residential flat buildings are permissible with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone.
17. Pursuant to cl 4.3(2) of LEP 2015, the maximum building height for the Site is 16m. This height standard is inconsistent with s 180(2)(b) which has a height development standard of 22m. Pursuant to: s 8 of SEPP Housing, the height standard at s 180(2)(b) of SEPP Housing prevails.
18. Pursuant to cl 4.4(2) of LEP 2015, the maximum FSR for the Site is 1.5:1. Section 180(2)(a) of SEPP Housing provides a non-discretionary development standard for FSR of 2.2:1 which is complied with and prevails: s 8 of SEPP Housing.
19. As required by cl 5.10 ‘Heritage Conservation’’ in LEP 2015 in determining the development application, I have given consideration to the potential impact of the proposed development on the Cronulla Esplanade which is listed as a local heritage item. With the assistance of the Statement of Environmental Effects (SEE) and the architectural plans, I accept the agreement of the parties that any impact arising from the proposed development does not warrant the refusal of the development application.
20. Pursuant to cl 6.1 ‘Acid Sulfate Soils’ in LEP 2015 The Site is identified as being affected by Class 5 acid sulfate soils. Pursuant to cl 6.1(2), an acid sulfate soils management plan must be provided to the consent authority prior to consent being granted for development on Class 5 land within 500 metres of adjacent Class 1, 2, 3 or 4 land for works that are below 5 metres Australian Height Datum (AHD) and by which the watertable is likely to be lowered below 1 metre AHD on adjacent Class 1, 2, 3 or 4 land. The Site is not within 500 metres of adjacent Class 1, 2, 3 or 4 land. Accordingly, an acid sulfate soils management plan is not required. Notwithstanding this, the development application does not propose any changes to the works which may impact the water table or acid sulfate soils.
21. Clause 6.14 ‘Landscaped Areas in Certain Zones’ of LEP 2015 applies to land within the R4 High Density Residential zone. The Site is identified within the Landscaped Area Map which requires that 30% of the site area must be landscaped area. The development application maintains the compliant provision of 30% deep soil landscaped area as approved under DA21/0628.
22. Clauses 6.16, 6.17 address urban design and design excellence and require the consent authority to consider the matters listed in the clauses prior to the grant of development consent. I accept the submission of the parties that the limited works proposed by the development application maintain the design quality of the development approved under DA21/0628. In accepting this submission, I am assisted by the assessment detailed in the SEE which accompanies the development application. I find that, having considered the matters listed in cl 6.16, in the context of the development application, they do not generate an impact that warrants the refusal of the development application. Further, cl 6.17 provides specific matters for consideration in relation to urban design as it relates to residential accommodation. On the same basis, I find that having considered the matters listed in cl 6.17, in the context of the development application, they do not generate an impact that warrants the refusal of the development application.
23. DCP 2015 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2015. In determining the development application, I have considered the provisions of the DCP 2015 under s 4.15(1) of the EPA Act.

Conditions of Consent

4. The parties have agreed on conditions of consent, including Condition 6 ‘Modification of development consent DA/21/0628 (as modified)’. This condition of consent requires the modification of the previous development consent that applies to the Site, pursuant to the mechanism provided for in ss 4.17(1)(b) and 4.17(5) of the EPA Act. Specifically, the Applicant must submit a ‘notice of modification’ to that effect to the Respondent prior to the issue of a Construction Certificate as required by s 67 of the EPA Regulation. The purpose of this requirement is to ensure that there is one consolidated development consent which applies to the whole of the Site, and which does not leave room for any inconsistency with any earlier development consent(s) applying to the Site.

5. The power to impose such a condition is found in s 4.17(1)(b) of the EPA Act, which enables a condition of development consent to be imposed if it requires the modification or surrender of a consent granted under this Act in relation to the land to which the development application relates. Further, s 4.17(5) of the EPA Act provides as follows:

“If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations.”

6. The relevant regulation which in turn applies pursuant to s 4.17(5) of the EPA Act is s 97 of the EPA Regulation. This regulation simply requires a ‘notice of modification’ to be provided to the Respondent and specifies what must be included in the notice. Importantly, s 67(1) of the EPA Regulation provides as follows:

“(1) A development consent or existing use right may be modified or surrendered by written notice to the consent authority.”

7. As such, condition 6 of the conditions of consent will facilitate and require the modification of the earlier development consents applicable to the Site, to ensure that they are made entirely consistent with the subject development consent, which is essentially a consolidation. This process is expressly empowered by s 4.17(1)(b) of the EPA Act and with s 67 of the EPA Regulation, as detailed above.

8. 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)).

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

Notes

10. The Court notes that the agreed orders of the parties include the Court granting the Applicant leave to rely on the following amended plans and documents. Further, I note that Sutherland Shire Council, as the relevant consent authority, has approved, under s 38(1) of the EPA Regulation, the Applicant further amending Development Application DA25/0478 to include the documents set out below:

| TAB | DOCUMENT | DATE | | 1. | Schedule of Amendments prepared by Artmade Architects | 17 November 2025 | | 2. | (Amended) Architectural Plans Prepared by ArtMade Architects • DA00.00 Cover Page – Revision C – 17 November 2025 • DA02.01 Site Plan – Revision C – 17 November 2025 • DA03.01 Basement Floor Plans – Revision B – 11 November 2025 • DA03.02 Ground Floor - Fourth Floor Plans – Revision B – 11 November 2025 • DA03.03 Fifth Floor & Roof Floor Plan – Revision C – 17 November 2025 • DA03.04 Calculations – Revision B – 17 November 2025 • DA04.01 External Elevations & Finishes – Revision B – • 17 November 2025 • DA04.02 External Elevations & Finishes – Revision B – 17 November 2025 • DA05.01 Sections & Height Plane – Revision B – • 17 November 2025 • DA06.01 Shadow Diagrams Comparison Sheet 1 – Revision B – 11 November 2025 • DA06.02 Shadow Diagrams Comparison Sheet 2 – Revision B – 11 November 2025 • DA06.03 Shadow Diagrams Comparison Sheet 3 – Revision B – 11 November 2025 • DA06.04 Indicative Strata Plans (For Da Purpose Only) – Revision A – 8 August 2025 • DA06.05 View From Sun Comparison Sheet 1 – Revision B – 17 November 2025 • DA06.06 View From Sun Comparison Sheet 2 – Revision B – 17 November 2025 • DA06.07 View From Sun Comparison Sheet 3 – Revision B – 17 November 2025 | 17 November 2025 | | 3. | (Amended) Landscape Plans (Rev J) prepared by Site Design Studios • L-01 Cover Sheet • L-02 Level 5 • L-03 Rooftop • L-04 Specification | 18 November 2025 | | 4. | (Updated) Design Verification Statement prepared by ArtMade Architects, including SEPP Housing and ADG Compliance table | 18 November 2025 | | 5. | (Updated) Strata Plan, as marked up by Council, prepared by ArtMade Architects | 8 August 2025 | | 6. | (Updated) BASIX Certificate No. 1822958M_02 prepared by Aspire Sustainability Consulting Pty Ltd | 21 November 2025 | | 7. | (Updated) NaHERS Certificate No. 0012118337-01 | 21 November 2025 |

Orders

11. The Court orders that:

12. (1) The Applicant is granted leave to amend Development Application DA25/0478 to include the documents listed at paragraph [10] of this judgment.

13. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed amount of $3,000.

14. (3) The appeal is upheld

15. (4) Development Application DA 25/0478, as amended, for alterations and additions to the approved residential flat building (DA21/0628) to add 1 level and a communal roof terrace with strata title subdivision at 34 The Esplanade, Cronulla, is determined by the grant of consent, subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (300 KB, pdf)

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