Ewos Investments Pty Ltd v Sutherland Shire Council

Cases Cited: Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410

Category: Principal judgment

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

Representation: Counsel:
G McKee (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/390362

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This matter concerns an appeal made directly to the Land and Environment Court, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), by the applicant seeking to modify DA23/0128 (Original Consent). The Original Consent was granted by the Land and Environment Court on 18 July 2024, (see Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410), and approved the demolition of existing improvements and construction of a five storey residential flat building (RFB) containing 15 units over basement parking on land identified as Strata Plan 11792, known as 8 Ewos Parade, Cronulla (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Modification Application

3. The Original Consent was amended by Modification Application MA24/0271 on 30 April 2025 (2025 Modification).

4. The modification application the subject of this appeal (MA25/0213) (Modification Application), sought to amend the Original Consent, as amended by the 2025 Modification, by:

5. increasing the building height by one storey;

6. adding approximately 201m2 of gross floor area;

7. internally reconfiguring the units; and

8. amending private and communal open space and landscaping.

9. On 10 October 2025, the applicant commenced these Class 1 proceedings.

10. Following the termination of an initial conciliation conference under s 34 of the LEC Act, the parties reached agreement under s34(3) of the LEC Act, as to the terms of a decision in the proceedings that would be acceptable to the parties and requested a further s 34 conference which was held on 20 March 2026.

11. A final signed s 34 agreement was provided to the Court on 19 March 2026 following the applicant agreeing to amend its Modification Application with the respondent’s agreement (Amended Modification Application). The agreed amendments to the Modification Application include:

12. increasing the number of units from 15 to 16;

13. changing materials, finishes and face presentation to the street; and

14. preparing a view impact assessment and providing additional shadow analysis to address neighbour’s concerns.

15. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

16. 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.

Jurisdictional considerations

10. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow:

Owner’s consent

11. The applicant is the registered proprietor of the Subject Land and provided its consent to the lodgement of the Modification Application (see Class 1 Application, tab 8).

The EPA Act

12. As the Original Consent was granted by the Land and Environment Court, the Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the EPA Act.

13. Section 4.55(2) of the EPA Act relevantly provides that a consent authority may modify development consent if it is satisfied of, and has considered, specified matters. Each relevant matter set out in s 4.55(2) is addressed below.

14. For the purposes of s 4.55(2)(a), I am satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted for the following reasons:

15. there is no change to the approved use as the development remains for a residential flat building, as originally approved, with a small increase in yield and height, as permitted by the State Environmental Planning Policy (Housing) 2021 (SEPP Housing); and

16. the modified development includes one additional unit, and reallocation of parking – therefore, there is no material intensification of use.

17. The parties agree that s 4.55(2)(b) of the EPA Act is not relevant in this matter.

18. In relation to s 4.55(2)(c) of the EPA Act, the Court as the consent authority must be satisfied that the development to which the consent as modified relates has been notified in accordance with a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of application for modification of development consent.

19. The Modification Application was notified between 24 October and 10 November 2025 with eight submissions received in response to the notification, raising concerns including:

20. solar access;

21. building height;

22. aesthetics and inconsistent with streetscape and character;

23. privacy;

24. view loss;

25. parking; and

26. traffic.

27. In relation to s 4.55(2)(d) of the EPA Act, the parties agree that the submissions received as part of the notification process have been taken into consideration in reaching agreement to resolve this matter. The parties agree that the relevant concerns of objectors have been considered and the Amended Modification Application is responsive to the community’s concerns.

28. In respect of s 4.55(3) of the EPA Act, in determining the Amended Modification Application, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Amended Modification Application, and the reasons given by the consent authority (in this case the Court – see Ewos Investments Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1410 for the grant of the Original Consent).

29. Matters relevant to s 4.15(1) of the EPA Act are considered below.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. The Subject Land is subject to the provisions in Ch 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) relating to remediation of land.

22. The parties agree, and I accept that, the Amended Modification Application does not give rise to any further or additional considerations of the RH SEPP beyond what was considered in the granting of the Original Consent. I also note the parties’ agreement regarding the long standing historical residential use of the site with no known contaminating uses.

State Environmental Planning Policy (Sustainable Buildings) 2022

23. An updated BASIX certificate No. 1362038M_02 dated 13 March 2026 has been prepared in accordance with the relevant provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

24. The parties agree that Ch 4 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) relating to design of residential apartment development applies to the Amended Modification Application as the proposal comprises development for the purposes of a RFB which meets the specifications outlined in s 144.

25. Section 147(1) of the Housing SEPP relevantly provides that development consent for residential apartment development must not be modified unless the consent authority has considered specified matters. The Amended Modification Application is accompanied by consideration of the design quality principles for residential development set out in Sch 9 of the Housing SEPP and the Apartment Design Guide (ADG) in the Statement of Environmental Effects prepared by DMPS dated August 2025 (SEE) and Design Verification Statement prepared by IDA Design dated 11 August 2025;.

26. The parties agree that Ch 6 of the Housing SEPP relating to low and mid rise housing applies to the Amended Development Application as the Subject Land is relevantly located within the “low and mid rise inner area” for the purposes of the Chapter.

27. Section 175 of the Housing SEPP relating to relevant development standards for low and mid rise housing inner area relevantly provides at (2) that development consent must not be granted for development for the purposes of residential flat buildings with a building height of up to 22m unless the consent authority is satisfied the building will have six storeys or fewer. The parties agree that the proposed development complies with this standard.

28. For the purposes of s 177 of the Housing SEPP relating to landscaping – residential flat buildings or shop top housing, the parties agree, and I accept, that the Tree Canopy Guide for Low and Mid Rise Housing has been considered as part of the proposed development (see SEE, pp 10-11).

29. For the purposes s 180 of the Housing SEPP relating to non-discretionary development standards – residential flat buildings and shop top housing in Zone R3 or R4, the parties agree and I accept that:

30. The Amended Development Application complies with the maximum floor space ratio of 2.2:1 (FSR Development Standard) under s 180(2)(a) proposing a FSR of 1.52:1; and

31. The Amended Development Application complies with the maximum building height of 22m (Height Development Standard) under s 180(2)(b) proposing a height of 18.95m.

Sutherland Local Environmental Plan 2015

30. The Subject Land is zoned R4 High Density Residential under the Sutherland Local Environmental Plan 2015 (LEP). I confirm that I have had regard to the R4 zone objectives. The parties agree that the proposed use as a residential flat building is permissible with consent in the R4 zone and remains unchanged from the Original Consent. The parties further agree that the proposed modification is compatible with the R4 zone objectives.

31. Pursuant to cl 4.3 of the LEP relating to height of buildings, a maximum height of 16m applies to the Subject Land. However, noting the Height Development Standard of 22m established under the Housing SEPP at [29] above, the parties agree, and I accept, that the Amended Development Application does not exceed the relevant Height Development Standard.

32. Pursuant to cl 4.4 of the LEP relating to FSR, a maximum FSR development standard of 1.5:1 applies to the Subject Land. However, noting the FSR Development Standard of 2.2:1 established under the Housing SEPP at [29] above, the parties agree, and I accept, that the Amended Development Application does not exceed the relevant FSR Development Standard.

33. Pursuant to cl 6.2 of the LEP relating to earthworks, the consent authority must relevantly consider the matters specified in cl 6.2(3) before granting development consent. The parties agree, and I accept that, the matters in cl 6.2(3) were adequately considered as part of the grant of the Original Consent and only minor earthworks changes are proposed by the Amended Modification Application and are appropriately conditioned.

34. Pursuant to cl 6.4 of the LEP relating to stormwater management, development consent must not be granted to development unless the consent authority is satisfied of the matters in cl 6.4(3). The parties agree, and I accept, that the matters in cl 6.4(3) have been satisfied having regard to the Stormwater Letter prepared by S&G Consultants dated 18 July 2025, which confirms that the stormwater design will remain unchanged from that approved as part of the Original Consent.

35. Pursuant to cl 6.14 of the LEP relating to landscaped areas in certain residential zones, the minimum percentage of the site area that is to consist of landscaped area is 30%. The parties agree, and I accept, that the Amended Modification Application complies with this provision.

36. Pursuant to cl 6.16 of the LEP relating to urban design general and cl 6.17 relating to urban design residential accommodation, the parties agree, and I accept that, the matters for consideration in cll 6.16 and 6.17 were considered as part of the grant of the Original Consent, with no material change to the approved urban design outcomes.

Sutherland Development Control Plan 2015

37. The Amended Development Application has considered and addressed the relevant provisions of the Sutherland Development Control Plan 2015 (see SEE).

Conclusion

38. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

39. The Court notes that:

40. The respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Modification Application MA25/0213 in accordance with the following plans and documents:

| Reference/ DWG No | Title/Description | Revision | Prepared by | Date | | Architectural Plans | | 0002 | CALCULATIONS | E | IDA Design Group | 25/02/2026 | | 0003 | BASIX COMMITMENTS | E | IDA Design Group | 13/03/2026 | | 0009 | SITE ZONES - SHEET 1 | E | IDA Design Group | 25/02/2026 | | 0009A | SITE ZONES - SHEET 2 | E | IDA Design Group | 25/02/2026 | | 0010 | FSR ZONES | E | IDA Design Group | 25/02/2026 | | 0011 | SITE PLAN | E | IDA Design Group | 25/02/2026 | | 1001 | BASEMENT PLAN | E | IDA Design Group | 25/02/2026 | | 1002 | GROUND FLOOR PLAN | E | IDA Design Group | 25/02/2026 | | 1003 | LEVEL 1 PLAN | E | IDA Design Group | 25/02/2026 | | 1004 | LEVEL 2 PLAN | E | IDA Design Group | 25/02/2026 | | 1005 | LEVEL 3 PLAN | E | IDA Design Group | 25/02/2026 | | 1006 | LEVEL 4 PLAN | E | IDA Design Group | 25/02/2026 | | 1007 | LEVEL 5 PLAN | E | IDA Design Group | 25/02/2026 | | 1008 | ROOF PLAN | E | IDA Design Group | 25/02/2026 | | 2001 | ELEVATIONS SHEET 01 | E | IDA Design Group | 25/02/2026 | | 2002 | ELEVATIONS SHEET 02 | E | IDA Design Group | 25/02/2026 | | 2005 | MATERIALS + FINISHES | E | IDA Design Group | 25/02/2026 | | 3001 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3002 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3003 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3004 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3005 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3006 | SECTIONS | E | IDA Design Group | 25/02/2026 | | 3007 | SECTION DRIVEWAY | E | IDA Design Group | 25/02/2026 | | 4001 | SUNS EYE DIAGRAMS – 10 EWOS | E | IDA Design Group | 25/02/2026 | | 4001A | SUNS EYE DIAGRAMS – 10 EWOS | E | IDA Design Group | 25/02/2026 | | 4001B | SUNS EYE TABLE – 10 EWOS | E | IDA Design Group | 25/02/2026 | | 4002 | SUNS EYE DIAGRAMS – DA APPROVAL ROKER | E | IDA Design Group | 25/02/2026 | | 4002A | SUNS EYE DIAGRAMS – DA APPROVAL ROKER | E | IDA Design Group | 25/02/2026 | | 4002B | SUNS EYE DIAGRAMS – DA APPROVAL ROKER | E | IDA Design Group | 25/02/2026 | | 4002C | SUNS EYE DIAGRAMS – DA APPROVAL ROKER | E | IDA Design Group | 25/02/2026 | | 4005 | SOLAR DIAGRAMS | E | IDA Design Group | 25/02/2026 | | 4006 | CROSS VENTILATION DIAGRAMS | E | IDA Design Group | 25/02/2026 | | 4007 | JUNE SHADOW DIAGRAMS SHEET 1 | E | IDA Design Group | 25/02/2026 | | 4008 | JUNE SHADOW DIAGRAMS SHEET 2 | E | IDA Design Group | 25/02/2026 | | 4010 | 3D HEIGHT PLANE 22m | E | IDA Design Group | 25/02/2026 | | 4011 | WINDOW AND DOOR SCHEDULE | E | IDA Design Group | 25/02/2026 | | 4025 | FRONT FENCE DETAIL | E | IDA Design Group | 25/02/2026 | | Supporting Documents | | | BASIX Certificate | | Taylor Smith Consulting | 13/03/2026 | | | View Analysis: • Approved Building Images (from 11 Ewos Parade, Cronulla) (Looking East) • Approved v LMR Building Images (from 11 Ewos Parade, Cronulla) (Looking East) • LMR Building Images (from 11 Ewos Parade, Cronulla) (Looking East) • Approved Building Images (from 13 Ewos Parade, Cronulla) (Looking East) • Approved v LMR Building Images (from 13 Ewos Parade, Cronulla) (Looking East) • LMR Building Images (from 13 Ewos Parade, Cronulla) (Looking East) |

2. The applicant filed the amended documentation with the Court on 19 March 2026.
3. The applicant has agreed to pay the modification application fee to the respondent in the amount of $6,335.92 within 28 days from the date of this judgment.

Orders

40. The Court orders that:

41. The appeal is upheld.

42. Pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (NSW), Modification Application MA25/0213 for an increase in building height by one storey, with associated internal reconfiguration of units and increase in the number of units from 15 to 16, at 8 Ewos Parade, Cronulla, is determined by way of approval.

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

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

N Targett

Commissioner of the Court

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Annexure A (198 KB, pdf)

Annexure B (365 KB, pdf)