Emag Apartments Pty Ltd v Sutherland Shire Council

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34
Water Management Act 2000
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.8
State Environmental Planning Policy (Housing) 2021, Chs 3, 4, Pt 3, ss 67, 68, 69, 144
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.119
Sutherland Shire Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.2, 6.4, 6.14, 6.16, 6.17

Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide
Sutherland Shire Development Control Plan 2015

Category: Principal judgment

Parties: Emag Apartments Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
A Pickles SC (Applicant)
M Staunton (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/176190

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Emag Apartments Pty Ltd (the Applicant) against the deemed refusal of their development application DA 23/0827. The development application, as amended, seeks consent for the demolition of existing structures and construction of a six-storey building for residential accommodation comprising 83 co-living rooms. The development is proposed at 25-27 The Grand Parade, Sutherland (Lot A and B in DP 13773) (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 was held on 15 October 2024. Following the conciliation conference, the Applicant made amendments to their development application responsive to the Respondent’s contentions, however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in November 2024, seeking to address the Respondent’s concerns.

4. The parties were assisted by the production of expert evidence and reporting in the areas of town planning and urban design, landscaping, acoustics and arboriculture. With the benefit of the expert evidence, the parties continued discussions and reached an agreement based on amended plans and documents. The parties’ agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 25 March 2025 and the hearing was adjourned. I presided over the further conciliation conference.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

6. The development application was lodged on 21 December 2023, Environmental Planning and Assessment Regulation 2021 (EPA Reg) applies. At the time of the lodgement of the development application, the site was owned by ‘EKD Investments Pty Ltd’ who provided land owner’s consent to the lodgement of the application. The site has since changed ownership and is now owned by an entity related to the Applicant.

7. The development application was notified by the Respondent from 11 January 2024. A number of submissions in objection were received. The amended plans and materials were renotified by the Respondent and two submissions were received. At the commencement of the matter on site, the Court was addressed by a number of concerned residents. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

8. The development application was referred to Water NSW for General Terms of Approval (GTA’s) as part of the proposed development requires a Water Supply Work approval under the Water Management Act 2000. Water NSW provided GTA’s on 29 May 2024, which are included in the conditions in Annexure A. Further, the development application includes a dewatering management plan which forms part of the approved documents.

9. Further, the development application was referred to Transport for NSW pursuant to s 2.99 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) due to the proximity of the site to the rail line. Transport for NSW provided GTA’s on 1 February 2024, which are included in the conditions in Annexure A.

10. The site has frontage to the access lane to a classified road, being The Grand Parade. Section 2.119 of SEPP TI requires a consent authority to be satisfied of three matters prior to the grant of consent. Firstly, that where practicable and safe, vehicular access to the land is provided by a road other than the classified road. Secondly, that the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development. And thirdly, that the development is of a type that is not sensitive to traffic noise or vehicle emissions, or that the development is appropriately designed, or includes measures, to ameliorate traffic noise. Each of these matters are satisfied.

(a) The development application proposes vehicular access from Kurrajong Street. (b) The development application includes a Traffic Impact Assessment that concludes that the safety, efficiency and ongoing operation of The Grand Parade will not be adversely affected by the development. (c) The development application includes an Acoustic Assessment with provides recommendations to satisfactorily ameliorate the traffic noise. These recommendations are required to be implemented by the consent conditions in Annexure A.

6. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential use with no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects (SEE). Further, the annexed conditions include the imposition of a condition of consent requiring a hazardous material survey prior to demolition. I find that s 4.6(1) of SEPP RH is satisfied.
7. The development application is subject to the provisions of Ch 3, Pt 3 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). The development proposed in the development application does not meet the definition of ‘residential apartment development’ pursuant to s 144 of SEPP Housing. Accordingly, the provisions of Ch 4 of SEPP Housing do not apply.
8. Pursuant to s 67 of SEPP Housing, development for the purposes of co-living housing may be carried out with consent on land where either development for the purposes of co-living housing is permitted or development for the purposes of residential flat buildings or shop top housing is permitted under an environmental planning instrument. The subject site is zoned R4 High Density Residential Development under the Sutherland Shire Local Environmental Plan 2015 (LEP 2015). Development for the purposes of both residential flat buildings and shop top housing are permitted with consent in the R4 zone. The proposed development is a permissible use.
9. Section 68 of SEPP Housing identifies non- discretionary standards for the purposes of s 4.15(3) of the EPA Act, namely standards which if complied with, prevent the consent authority from requiring more onerous standards for the matters. The parties agree, and with the assistance of the Jurisdictional note, the SEE and the architectural plans, I accept that the amended development application complies with all the applicable standards at s 68(2) of SEPP Housing with the exception of floor space ratio (FSR). I address the compliance with FSR at (22) below.
10. Pursuant to s 69 of SEPP Housing, development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied of the following:

(a) the minimum and maximum room areas at s 69(1)(a) are met; (b) the site meets the minimum lot size applicable at s 69(1)(b); (c) the co-living housing will contain an appropriate workspace for the manager: s 69(1)(d); (d) adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant: s 69(1)(f); (e) each private room will be used by no more than two occupants: s 69(1)(g); (f) the co-living housing will include adequate bicycle and motorcycle parking spaces: s 69(1)(h);

11. The parties agree, and with the assistance of the Jurisdictional note, the SEE and the architectural plans, I accept that the amended development application complies with all the applicable standards at s 69(1) of SEPP Housing.
12. Further, s 69(2) of SEPP Housing requires the consent authority to consider whether:

(a) for development on land in Zone R4 High Density Residential—the setbacks proposed are not less than the minimum setback requirements for residential flat buildings under a relevant planning instrument; (b) if the co-living housing has at least three storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide; (c) at least three hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area; (d) the design of the building will be compatible with—

(i) the desirable elements of the character of the local area, or (ii) for precincts undergoing transition—the desired future character of the precinct.

13. Having considered the matters listed at s 69(2) of SEPP Housing, I am satisfied that none warrant the refusal of the development application.
14. Pursuant to the definition of ‘BASIX building’ contained in the dictionary to the EPA Reg, the proposed development does not require a BASIX certification.
15. The development application is within the Georges River catchment and Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Pursuant to s 6.6 ‘Water quality and quantity’ in deciding whether to grant consent, I must consider the following matters:

(a) whether the development will have a neutral or beneficial effect on the quality of water entering a waterway,

(b) whether the development will have an adverse impact on water flow in a natural waterbody,

(c) whether the development will increase the amount of stormwater run-off from a site,

(d) whether the development will incorporate on-site stormwater retention, infiltration or reuse,

(e) the impact of the development on the level and quality of the water table,

(f) the cumulative environmental impact of the development on the regulated catchment,

(g) whether the development makes adequate provision to protect the quality and quantity of ground water.

16. The parties agree, and I accept that having regard to the amended stormwater plans, that having considered these matters they do not warrant refusal of the development application. Further, on the following grounds I am satisfied that the effect of the development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial and the impact on water flow in a natural waterbody will be minimised.

(a) The amended stormwater plans include controls for treatment and control of stormwater as well as appropriate quality devices. (b) The development includes the provision of onsite detention. (c) The consent includes GTA’s from Water NSW and a dewatering plan.

17. As required by s 6.7 ‘Aquatic ecology’ of the SEPP BC, I have given consideration to the matters listed at subs 6.7(2). Further, I accept the agreement of the parties that I can be satisfied of the matters in subs 6.7(3). I note that the development does not involve the removal of riparian vegetation, and the development is designed to minimise stormwater runoff thereby minimising any potential erosion or sedimentation of waterways. Further, the site is distant from any natural waterbody, coastal wetland or littoral rainforest.
18. In relation to s 6.8 ‘Flooding’ of SEPP BC, I note that the site is not located on flood liable land.
19. The LEP 2015 applies to the site. The site is located on land zoned R4 High Density Residential. Under s 67 of SEPP Housing, the proposed use is permissible. As required by cl 2.3(2) of LEP 2015, in determining the development application I have had consideration to the zone objectives.
20. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2015.
21. Pursuant to cl 4.3 ‘Height of Buildings’ in LEP 2015, the maximum height limit applicable to the site is 20m. The development application complies with the height development standard.
22. Clause 4.4 ‘Floor space ratio’ provides that the maximum FSR for the site is 1.5:1. However, the site is also subject to an additional 0.15: of floor space pursuant to s 68(2) of SEPP Housing. The combined effect of the two provisions is an FSR of 1.65:1. The amended development application proposes a maximum FSR of 1.77:1, varying the development standard. The development application is accompanied by a written request to vary the FSR standard. I have read the written request prepared by Planning Ingenuity Pty Ltd, dated 24 March 2025 and in accordance with cl 4.6 of LEP 2015, I am satisfied that:

(a) The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the FSR control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2015). I find that the objectives of the FSR standard are met, notwithstanding the variation to the standard for the reasons detailed in the written request which I adopt. (b) I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2015). In particular, I find that the reasons articulated in written request in relation to the provision of additional diverse housing on a well-located site proximate to the Sutherland commercial centre and rail station, in circumstances where the additional FSR does not give rise to unacceptable adverse impacts, is a sufficient ground. (c) The states of satisfaction required by cl 4.6 of LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the FSR control.

23. Pursuant to cl 6.2 ‘Earthworks’ of LEP 2015, development consent is required for the proposed earthworks. In relation to required considerations at cl 6.2(3), I accept the agreed position of the parties that:

(a) the proposed earthworks are unlikely to have any detrimental impact on drainage patterns and soil stability in the locality of the development or the future use or redevelopment of the site; (b) the development application is accompanied a Geotechnical Assessment which has considered the properties of the soil to be excavated; (c) the development application and the annexed conditions seek to appropriately mitigate any effect of the development on the existing and likely amenity and structural integrity of adjoining properties; (d) that the site is unlikely to contain any items of historic significance or relics; (e) that the site is unlikely to be contaminated; and (f) that the earthworks are unlikely to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items.

24. Clause 6.4 of LEP 2015 requires the consent authority to be satisfied that the development maximises the use of water permeable surfaces on the land, includes on-site stormwater retention and avoids significant adverse impacts of stormwater run-off on adjoining properties. I accept the agreed position of the parties that:

(a) the development, as amended, is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; (b) includes on-site stormwater detention to minimise stormwater runoff volumes; (c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact; and (d) is designed to minimise the impact on public drainage systems.

25. Clause 6.14 of LEP 2015 ‘Landscaped areas in certain residential, employment, conservation and waterways zones’ applies to the site. The clause requires that 30% of the site must be landscaped areas. The amended development application complies with this development standard.

26. Clause 6.16 of LEP 2015 deals with urban design in general, and cl 6.17 of LEP 2015 the urban design of residential development. Clause 6.16 requires certain matters at subcl (1) to be considered in deciding whether to grant development consent to the proposed development. An assessment of those matters is set out in the SEE accompanying the development application. By reference to the SEE, the architectural plans and the urban design assessment which accompanies the development application, I have considered the matters listed at cll 6.16(1) and 6.17 and I find that none warrant the refusal of the development.

27. Sutherland Shire Development Control Plan 2015 (DCP 2015) applies - to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2015. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

28. 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)).

29. 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.

30. The Court notes that:

31. Sutherland Shire Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant further amending Development Application DA23/0827 to include the following documents:

| No | Documents | Date | | 1. | Amended Architectural Plans (Rev M) prepared by Tier Architects • 100: Cover Page • 101: Site Plan • 102: Site Analysis • 200: Basement 1 Floor Plan • 201: Ground Floor • 202: Level 1 Floor Plan • 203: Level 2 Floor Plan • 204: Level 3 Floor Plan • 205: Level 4 Floor Plan • 206: Level 5 Floor Plan • 207: Level 6 Floor Plan • 208: Roof Plan • 300: Elevations 1 • 301: Elevations 2 • 302: Elevations 3 • 303: Streetscape Elevation • 400: Section AA • 400A: Section BB • 401: Driveway Section • 502: Calculations 1 • 503: Calculations 2 • 504: Calculations 3 • 600: Accessible Layouts • 601: Kitchen Detail • 700: Winter Shadows – 9AM, 10AM • 700A: Winter Shadows – 11AM, 12PM • 700B: Winter Shadows – 1PM, 2PM • 701: Winter Shadows – 3PM • 702: Equinox Shadows – 9AM, 12PM • 703: Equinox Shadows – 3PM • 800: Tree Retention Plan • 800A: Kurrajong Street Tree Plan • 801: Waste Management Plan • 802: Height Plane Diagram • 900: Materials and Finishes • 902: Perspective | 20 March 2025 | | 2. | Amended Landscape Plans (Issue L) prepared by Paul Scrivener • 1 of 5: Landscape Site Plan • 2 of 5: Details Plan • 3 of 5: Planting Plan • 4 of 5: Level 4 & 5 Terrace Plan • 5 of 5: Landscape Calculations | 20 February 2025 | | 3. | Amended Stormwater Plans prepared by LMW • D1 – Basement 1 Stormwater Drainage Concept Plan – Rev C – 27 September 2024 • D3 – Site and Ground Floor Stormwater Drainage Concept Plan – Rev E – 28 February 2025 • D4 – Site and Stormwater Concept Plan Continued – Rev D – 20 March 2024 • D5 – Drains Calculation and Results – Rev C – 28 February 2024 • D6 – MUSIC Model Results – Rev B – 37 September 2024 • D7 – Level 1 Stormwater Drainage Concept Plan – Rev B – 27 September 2024 • D8 – Level 2 Stormwater Drainage Concept Plan – Rev B – 27 September 2024 • D9 – Level 3 Stormwater Drainage Concept Plan – Rev B – 27 September 2024 • D10 – Level 4 Stormwater Drainage Concept Plan – Rev C – 27 September 2024 • D11 – Level 5 Stormwater Drainage Concept Plan – Rev C – 27 September 2024 • D12 – Level 6 Stormwater Drainage Concept Plan – Rev C – 27 September 2024 | Up to 20 March 2025 | | 4. | Urban Design Assessment prepared by Urbanac | February 2025 | | 5. | Amended Clause 4.6 Variation Request prepared by Planning Ingenuity | March 2025 | | 6. | Addendum Arborist Statement prepared by Jacksons Nature Works | 12 March 2025 | | 7. | Amended Acoustic Report prepared by West and Associates | 7 March 2025 |

2. The Applicant’s written request prepared by Planning Ingenuity dated 7 March 2025, made pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, requesting the grant of development consent in contravention of clause 4.4 of the Sutherland Shire Local Environmental Plan 2015, is upheld.

3. The Applicant provided the further amending Development Application to the Court on the date of the agreement.

4. The Court orders that:

5. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $5,000 payable within 28 days.

6. The appeal is upheld.

7. Development application DA23/0827, as amended, for the demolition of existing structures and construction of a six-storey building for residential accommodation comprising 83 co-living rooms with basement carparking and landscaping at 25-27 The Grand Parade, Sutherland (Lot A and B in DP 13773) is determined by the grant of consent subject to the conditions in Annexure A.

D Dickson

Commissioner of the Court

Annexure A (6889458, pdf)

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