Freedom Development Group Pty Ltd v Sutherland Shire Council

Judgment

1. COMMISSIONER: This is an appeal by Freedom Development Group Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/0531 (the application).
2. The application as lodged sought consent under the EPA Act for the demolition of existing structures and construction of a boarding house at 393 Kingsway, Caringbah (No. 393).
3. The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R4 High Density Residential zone in which the site is situated under the Sutherland Shire Local Environmental Plan 2015.
4. The Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held between February and April 2019. I presided over the conciliation.
5. At the first conciliation conference, the Council raised a number of contentions which the Council considered could largely be addressed if the site and development was amalgamated with the site and boarding house development proposed next door which was, in essence, in the control of the same parties. That development was the subject of a separate appeal to the Court (18/98975) being for 391 Kingsway, Caringbah (No. 391). Appeal 18/98975 had been the subject of conciliation which had been terminated on the basis that the parties could not come to an agreement. Appeal 18/98975 was set down for hearing in mid-April.
6. During conciliation, the Applicant agreed to amend the application to incorporate the adjoining site, being No. 391. Whilst still remaining on separate lots, the site therefore now comprised 391 and 393 Kingsway and the amended application proposed two boarding houses with nil setbacks to the common boundary, and a common basement extending across that boundary. This development form would enable greater setbacks to other side boundaries resulting in improved amenity for future residents and objecting neighbours, including in terms of improved solar access, privacy and outlook. It would also enable additional landscaping and an improved streetscape presentation relative to two separate boarding houses on two narrow lots. It also facilitated a common basement, with reciprocal access proposed by way of easements, and a single crossover to Kingsway.