Ewos Investments Pty Ltd v Sutherland Shire Council

Category: Principal judgment

Parties: Ewos Investments Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
M Sonter (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/454124

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of Modification Application MA24/0721, made directly to the Court pursuant to s 4.55 (8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The application seeks to modify development consent DA23/0128, which permitted the demolition of existing structures and construction of a five-storey residential flat building containing 15 apartments, basement parking and associated landscaping at 8 Ewos Parade, Cronulla, legally known Lot 1 in Strata Plan 11792.

2. The modification application seeks to amend internal floor plates, private open space, building materials and finishes, and excavation depth to a minor extent.

3. 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 17 March and 8 April 2025. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court approving the application to modify the consent in accordance with the modification application.

4. During the conciliation conference, the Council agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) to the applicant amending the modification application to adequately respond to the Council’s contentions. Broadly, these amendments included revisions to:

5. The bulky waste storage arrangement and electrical charging bay allocation in the basement;

6. Landscape fencing and private open space allocation;

7. Building materials, window arrangement and façade details;

8. Privacy treatments in various locations, and

9. The potential drainage easement location to connect the site stormwater to the Council’s infrastructure.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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(8) of the EPA Act to modify the development for which consent was originally granted by the Court.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

12. An updated BASIX Certificate has been provided, as required pursuant to s 100 (3) of the EPA Regulation. Further, a statement by a qualified designer has been provided with the Class 1 application as required by, and fulfilling the provisions of, s 102 of the EPA Regulation.

13. The requested modification results in a building that is of equivalent height and gross floor area, with minor adjustments to elevations and general arrangements that result in a lesser environmental impact. On this basis, pursuant to the requirements of s 4.55(2) of the EPA Act, I am satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted.

14. No further consultation is required pursuant to the requirements under EPA Act 4.55 (2)(b), and the application was notified as required under s 4.55 (2)(c) between 20 December 2023 and 27 January 2024. No submissions were received in this period.

15. Based on the parties’ submissions and the original judgment of the Court at Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410, I am satisfied that the reasons given by the consent authority for the grant of consent that is sought to be modified have been considered.

16. Based on the information contained in the Statement of Environmental Effects, the Class 1 application and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(3) and that there is no jurisdictional impediment to the granting of consent.

17. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. The Court notes that:

19. Sutherland Shire Council, as the relevant consent authority, has approved, under section 113 of the EPA Regulation, to the Applicant amending Modification Application MA24/0271 in accordance with the documents listed below:

| No. | Drawing No / Rev | Drawing Title | Prepared By | Date | | Architectural Plans | | 1. | 1001/C | Basement Plan | IDA Design Group | 10/04/2025 | | 1002/C | Ground Floor Plan | IDA Design Group | 10/04/2025 | | 1003/C | Level 1 Plan | IDA Design Group | 10/04/2025 | | 1004/C | Level 2 Plan | IDA Design Group | 10/04/2025 | | 1005/C | Level 3 Plan | IDA Design Group | 10/04/2025 | | 1006/C | Level 4 Plan | IDA Design Group | 10/04/2025 | | 1007/C | Roof Plan | IDA Design Group | 10/04/2025 | | 2001/C | Elevations Sheet 01 | IDA Design Group | 10/04/2025 | | 2002/C | Elevations Sheet 02 | IDA Design Group | 10/04/2025 | | 2005/C | Materials + Finishes | IDA Design Group | 10/04/2025 | | 3001/C | Sections | IDA Design Group | 10/04/2025 | | 3002/C | Sections | IDA Design Group | 10/04/2025 | | 3003/C | Sections | IDA Design Group | 10/04/2025 | | 3004/C | Sections | IDA Design Group | 10/04/2025 | | 3005/C | Sections | IDA Design Group | 10/04/2025 | | 3006/C | Sections | IDA Design Group | 10/04/2025 | | 3007/C | Section Driveway | IDA Design Group | 10/04/2025 | | 4011/C | Window and Door Schedule | IDA Design Group | 10/04/2025 | | 4028/C | 3D Visuals Pool | IDA Design Group | 10/04/2025 | | Stormwater Plans | | 2. | S04-SW101/A | Notes & Legend | SGC Engineering | 14/04/2025 | | S04-SW201/A | Erosion & Sediment Control Plan & Details | SGC Engineering | 14/04/2025 | | S04-SW301/A | Stormwater Drainage Design Basement Plan | SGC Engineering | 14/04/2025 | | S04-SW302/A | Stormwater Drainage Design Ground Floor Plan Sheet 01 of 03 | SGC Engineering | 14/04/2025 | | S04-SW303/A | Stormwater Drainage Design Ground Floor Plan Sheet 02 of 03 | SGC Engineering | 14/04/2025 | | S04-SW304/A | Stormwater Drainage Design Ground Floor Plan Sheet 03 of 03 – Existing Adjacent Site | SGC Engineering | 14/04/2025 | | S04-SW401/A | Stormwater Drainage Design Details Sheet 01 of 02 | SGC Engineering | 14/04/2025 | | S04-SW402/A | Stormwater Drainage Design Details Sheet 02 of 02 | SGC Engineering | 14/04/2025 | | S04-SW501/A | Stormwater Drainage Design Music Catchment Plan & Details | SGC Engineering | 14/04/2025 | | Supporting Documents | | No. | Document | Date | | 3. | BASIX Certificate No. 1362038M_05 | 22/04/2025 | | 4. | Letter of Support (18-20 Roker Street) | 03/06/2024 |

14. The Court orders:

15. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0271 for alterations to floor plates internally, amendments to private open space, minor amendments to building materials and finishes, and minor increase to excavation depth at 8 Ewos Parade, Cronulla, is determined by way of approval.

16. Development Consent No. DA23/0128 is modified in the terms in Annexure A.

17. Development Consent No. DA23/0128 as modified by the Court is Annexure B.

E Washington

Commissioner of the Court

Annexure A (202666, pdf)

Annexure B (353655, pdf)

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