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Degnan v Sutherland Shire Council [2026] NSWLEC 1021 | Case summary | Zoe

NSWNSWLEC

Degnan v Sutherland Shire Council

[2026] NSWLEC 1021

Land and Environment Court (NSW)|2026-01-20|Before: Kullen AC

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-01-20

Before

Kullen AC

Catchwords

DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation
of height of building development standard — agreement
between the parties
— orders

Source

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Catchwords

DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variationof height of building development standard — agreementbetween the parties— orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Degnan v Sutherland Shire Council [2026] NSWLEC 1021

Hearing dates: Conciliation Conferences on 25 and 26 November 2025

Date of orders: 20 January 2026

Decision date: 20 January 2026

Jurisdiction: Class 1

Before: Kullen AC

Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application DA/24/0723 as amended for alterations and additions to the existing dwelling, construction of 1 new inclinator, alterations to the existing swimming pool and landscaping works at 231 Woolooware Road, Burraneer, NSW, 2230, legally known as Lot 1 DP 1240364, subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPEAL — conciliation conference — cl 4.6 variation of height of building development standard — agreement between the parties — orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 8.7, Sch 1, Div 2, cl 7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 38, Sch 7
Sutherland Shire Local Environmental Plan 2015, cll 2.2, 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.7, 6.9, 6.14, 6.16, 6.17 State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, ss 2.10, 2.11, 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by Sutherland Shire Council of development application DA/24/0723 (DA). The DA sought consent for the carrying out of alterations and additions to the existing dwelling, construction of 2 new inclinators, alterations to the existing swimming pool and landscaping works at 231 Woolooware Road, Burraneer, NSW, 2230, legally known as Lot 1 DP 1240364 (the site).
The DA was lodged with the Respondent on 19 December 2024. On 3 July 2025, the Applicant filed Class 1 proceedings with the Court.
The Respondent filed its Statement of Facts and Contentions (SOFAC) with the Court on 25 July 2025.
The Respondent advised that one submission was received in response to the notification of the original DA from 13 January to 27 January 2025.
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 25 and 26 November 2025, commencing with an on-site view. I presided over the conciliation conference. Two persons (who were residents of adjoining properties) were present at the on-site view, and town planner Ms Campbell on behalf of the owner of No 231B Woolooware Road Burraneer also attended the on-site view and made submissions to the Court.
At the on-site view, the parties confirmed that they had reached a s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This s 34 agreement, with amended plans, was filed with the Court on 21 November 2025 (prior to the on-site view).
Ms Campbell raised particular points at the on-site view relating to the visual amenity impacts of the proposed development on the dwelling at No 231B Woolooware Road Burraneer, the desirability of providing a view corridor, and the adequacy of landscaping proposed as part of the proposed development. I agreed, with consent of the parties, that Ms Campbell provide a written statement to the parties to assist them in assessing and finalising the amendments to the plans. Ms Campbell’s statement was provided on the morning of 26 November 2025 and reviewed by the parties prior to the amended plans being finalised.
Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. The parties reached a final s 34 agreement on 26 November 2025. This decision involved the Court upholding the appeal and granting development consent to the further amended DA, subject to conditions, as agreed by the parties.
The final signed s 34 agreement, Annexure A (Conditions of Consent) and the amended plans and documents were filed with the Court on 26 November 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites provided to the Court on 26 November 2025.
The parties advise that they agree that all contentions raised in the SOFAC and the concerns raised by the submitters have been resolved by the further amended DA and the proposed conditions of consent. In support of the amended plans the Respondent’s town planners provided a view impact analysis (annexed to the Jurisdictional Statement) to address a number of the issues raised by Ms Campbell.
The further amended DA provides amended architectural, engineering and landscape plans which include the following amendments to the plans:
The roof extent adjacent to Bed 2 has been reduced;
One inclinator has been removed;
Existing paving has been removed and replaced with turf to increase deep soil planting;
A garden with climbing plants has been added at the base of a wall;
Proposed pool access stair has been reduced in width to accommodate increased landscaping;
Stepping stones removed to increase deep soil landscaping;
Additional planter included;
Wall build outs have been reduced;
The roof adjacent to the rumpus room has been reduced in extent; and
A condition has been imposed to remove the architectural roof feature above the entry area.
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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the further amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

The Sutherland Shire Local Environmental Plan 2015 (the LEP) applies to the site and to the proposed development. The site is zoned C4 Environmental Living Zone (C4 zone) pursuant to cl 2.2 of the LEP; and
The proposed development for the purposes of a dwelling house is permissible with consent within the E4 zone;
I am satisfied that the proposed development is consistent with the objectives for development at cl 2.3 of the LEP within the zone in which the development is proposed to be carried out.
Clause 2.7 of the LEP provides that demolition is permissible with consent.
Clause 4.3 of the LEP 2015 establishes a maximum building height of 8.5 metres for the site. The parties advise that the proposed development does not comply with this development standard, as it proposes a maximum building height of 10.41m (Lower Ground Floor to First Floor) and 9.37m (Pool Level to Ground Floor).
The parties further advise that the existing dwelling does not comply with the maximum building height and is presently a height of 9.0m at its highest point (Pool Level to Ground Floor). The proposed development provides for an additional 1410mm in building height.
Pursuant to cl 4.6 of the LEP, a variation request prepared by Planning Ingenuity (undated) filed with the Court on 3 July 2025 has been submitted to justify the contravention of the HoB development standard.
The parties advise that the cl 4.6 variation request in particular relates to the additional roof form forward of the existing ridge line of the dwelling. The cl 4.6 variation states that:
The proposed alterations and additions will update the existing dwelling with a small first floor addition which results in a minor encroachment point to the north west corner of the building;
The first floor level sits above the existing building footprint, with the ridge height remaining consistent with the existing dwelling, but resulting in two small point encroachments to the western side at ground and first floor;
When viewed from Woolooware Road, the right of way carriageway and neighbouring properties to the east, and the proposed built form will not create any HoB breaches that are visible. When viewed from the waterway, the dwelling height is no greater than the existing dwelling height.
I am satisfied that the Applicant’s cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable.
I consider that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP because the proposed development achieves the objectives of the HoB development standard at cl 4.3(1)(a)-(f) of the LEP notwithstanding the breach in the maximum building height, for the reasons provided within the Applicant’s written request, which I adopt.
I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of the LEP, for the following reasons as stated in the written variation request:
The height breach is a result of the steep topography of the site, which has a fall of approximately 9 metres over the length of the dwelling;
The height exceedence will appear compliant with the HoB controls for the site when viewed from Woolooware Road or the waterway;
The extent of the non-compliance will create no additional adverse overshadowing or any additional privacy impacts; and
The proposed development will not result in any material loss of views or outlook when compared to a compliant building height.
Approval of the proposed development will be in the public interest for the reasons provided above (at [27(1)]-[27(4)]), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the E4 zoning of the subject site, for the reasons provided within the Applicant’s written request, which I also adopt.
The site is subject to cl 4.4 of the LEP in relation to the maximum floor space ratio (FSR) of 0.5:1 as shown in the Floor Space Ratio Map in the LEP. The parties advise that presently the FSR on the site is 0.43:1 and the proposed FSR is 0.5:1. The proposal therefore complies with the FSR development standard.
Clause 5.10 of the LEP relates to heritage conservation. The parties advise that:
In relation to cl 5.10 of the LEP the house is not listed and is not within a heritage conservation area;
However, the dwelling is located off Woolooware Road, where there is an item (0631) nearby known as ‘Alignment of first road in Sutherland Shire’; and
There are no heritage impacts arising out of the proposal.
Clause 6.1 of the LEP relates to Acid sulfate soils. The parties advise that no works are proposed that require excavation beyond already developed areas so as not to activate any acid sulfate soils.
Clause 6.2 of the LEP relates to Earthworks. The parties advise that the proposal complies with cl 6.2 of the LEP.
Clause 6.4 of the LEP relates to Stormwater management. The parties advise that the proposed development complies with cl 6.4 of the LEP as it proposes to connect to the existing stormwater drainage system.
Clause 6.7 of the LEP relates to Environmentally sensitive land – riparian land and watercourses. The parties advise that the proposal will not impact the matters set out in cl 6.7 and these have been considered in the Class 1 Application filed with the Court.
Clause 6.9 of the LEP relates to the Limited development on the foreshore area. Clause 6.9 provides as a development standard the restriction of limiting certain buildings and ancillary structures in the foreshore area. The parties advise that the proposal seeks to create a more regular building shape which will slightly encroach into the foreshore area, and that the proposed development will improve the appearance of the building. The impacts are considered in the Class 1 Application filed with the Court.
Clause 6.14 of the LEP relates to landscaped areas. The parties advise that:
The proposed development will improve the existing site landscaped area, which presently does not comply with the 40% minimum area, as detailed the Statement of Environmental Effects (SEE) contained in the Class 1 Application; and
Clause 6.14(4A and 4B) permits an existing non-compliance to continue and development consent to be granted if the consent authority is satisfied of the matters in cl 6.14(4A)(b).
Clauses 6.16 and 6.17 of the LEP relate to general, and residential accommodation urban design. The parties advise that the proposal addresses these clauses and a consideration of these clauses is set out in the SEE contained in the Class 1 Application.