Ewos Investments Pty Ltd v Sutherland Shire Council

Land and Environment Court (NSW)|2024-07-12

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA23/0128 (DA) by Sutherland Shire Council (Council).
The DA seeks consent for demolition of the existing improvements and construction of a five storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla (site).

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 12 July 2024. Prior to the conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended in the course of conciliation, in accordance with agreed conditions.

Sutherland Shire Local Environmental Plan 2015

The site is zoned R4 High Density Residential under the applicable Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development is permissible with consent. I have had regard to the zone objectives and note that the parties believe the proposal, as amended, is consistent with these objectives.
I note and accept the advice of the parties that the proposal does not breach any development standards under SSLEP.
Clause 6.4, concerned with stormwater management, requires findings of satisfaction in regard to certain matters. In regard to this, the parties referred me to material at Tab 4 of the applicant's Section 34 Agreement Bundle which was filed with the Court on 4 July 2024. This material, prepared by S & G consulting engineers, directly addresses at pg 6 the particulars of cl 6.2(3). The parties advise me they agree with the findings of this work. In turn I also find that the development satisfies the requirements of cl 6.2(3).

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so. The applicant provided evidence that the site has been used for residential purposes for in excess of 45 years without any suggestion of particular uses at risk of bringing about contamination. I accept the advice of the parties that, in light of the above, the consent authority can be satisfied that the site is not contaminated and the requirements of s 4.6 have been met.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 and State Environmental Planning Policy (Housing) 2021

In their jurisdictional note, the parties advise that both State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development 2002 (SEPP 65) and State Environmental Planning Policy (Housing) 2021 (SEPP Housing), each have some relevance to the assessment of the DA. However, the parties advise that it is s 147 of the Housing SEPP which attention should be directed in the consideration of jurisdiction and, even so, the matters there listed are matters for consideration, rather than matters requiring jurisdictional findings. Here, I note that the parties advise that the proper procedural requirements and evaluative considerations of both the Housing SEPP and SEPP 65 have been undertaken in coming to their agreed decision.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

The parties have advised me of objecting submissions in relation to the proposal (indeed I heard from two objectors prior to the commencement of the conciliation conference). The parties explained to me how consideration has been given to them in coming to the final agreed amended plans.

Conclusion

With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. Subsection 34(3)(b) of The LEC Act also requires me to "set out in writing the terms of the decision". The final orders have this effect.

Notations

With respect to the amendments of the DA, the Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application No DA 23/0128 in accordance with the amended plans and documents listed below: No. Drawing No / Rev Drawing Title Prepared By Date Architectural Plans

                             0006/F                                                          Demolition Plan                                        IDA Design Group  05/06/2024

0007/F Construction Management Plan 0011/F Site Plan 0013/F Site Plan - Fire Truck 1001/F Basement Plan 1002/F Ground Floor Plan 1003/F Level 1 Plan 1004/F Level 2 Plan 1005/F Level 3 Plan 1006/F Level 4 Plan 1007/F Roof Plan 2001/F Elevations Sheet 01 2002/F Elevations Sheet 02 3001/F Sections 3002/F Sections 3003/F Sections 3004/F Sections 3005/F Sections 3006/F Sections 4009/F Material 4010/F 3D Height plane 16m 4011/F Window and Door Schedule Stormwater Plans 23. SW01/J SW02/J Erosion SW03/J Basement Stormwater Plan SW04/J Ground Floor Stormwater Plan SW05/J Roof Stormwater Plan SW06/J OSD Calculation Sheet SW07/J Detail Sheet 1 SW08/J Detail Sheet 2 Stormwater Drainage Easement Plans 31. SW201/C SW301/C Stormwater SW302/C Stormwater SW401/C Stormwater Supporting Documents No. Document 35. Stormwater 36. Supplementary 37. Letter of IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 & Finishes Schedule IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 IDA Design Group 05/06/2024 Cover sheet & Specifications GEBA Consulting 05/06/2024 & Sediment Control Plan GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 GEBA Consulting 05/06/2024 Stormwater Easement Design - General Arrangement Plan SGC Engineering 29/05/2024 Easement Design - Catchment Plan SGC Engineering 29/05/2024 Easement Design - HGL Analysis SGC Engineering 29/05/2024 Easement Design - Details - Sheet 01 SGC Engineering 29/05/2024 Date Assessment Letter prepared by SGC Engineering 30/06/2024 Traffic Swept Paths prepared by Stanbury Traffic 18/06/2024 Support (14 Roker Street) 03/06/2024

The amended development application was filed with the Court on 4 July 2024. 2. That the respondent is now satisfied that the contentions raised in the proceedings have been addressed by the amended plans and documents in the Amended Application.

Orders

The Court orders that: 1. The appeal is upheld. 2. As a result of all amendments made, the applicant is to pay the respondent's costs thrown away (inclusive of those payable under Order 4 of the Short Minutes handed down 3 May 2024) in the agreed amount of $20,000, to be paid within 28 days of the date of these orders - in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. Development consent is granted to Development Application DA23/0128 for demolition of the existing improvements and construction of a 5 storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla, subject to the conditions of consent annexed hereto and marked "Annexure A".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2024

With respect to the amendments of the DA, the Court notes that:

(1) Sutherland Shire Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending the development application No DA 23/0128 in accordance with the amended plans and documents listed below:

Stormwater Easement Design - General Arrangement Plan

Stormwater Assessment Letter prepared by SGC Engineering

Supplementary Traffic Swept Paths prepared by Stanbury Traffic

(2) The amended development application was filed with the Court on 4 July 2024.

(3) That the respondent is now satisfied that the contentions raised in the proceedings have been addressed by the amended plans and documents in the Amended Application.

(1) The appeal is upheld.

(2) As a result of all amendments made, the applicant is to pay the respondent's costs thrown away (inclusive of those payable under Order 4 of the Short Minutes handed down 3 May 2024) in the agreed amount of $20,000, to be paid within 28 days of the date of these orders - in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) Development consent is granted to Development Application DA23/0128 for demolition of the existing improvements and construction of a 5 storey residential flat building containing 15 units over basement parking at 8 Ewos Parade, Cronulla, subject to the conditions of consent annexed hereto and marked "Annexure A".

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

(2023) 111 NSWLR 634

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)