FSLA Property Holdings Pty Ltd v Sutherland Shire Council

Category: Principal judgment

Parties: FSLA Property Holdings Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
N Eastman SC (Applicant)
J Amy (Solicitor)(Respondent)
Solicitors:
Mourd Evans Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/375108

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA24/0089 seeking consent for the demolition of existing structures and construction of a childcare centre with basement parking (Proposed Development) at 17-19 Loftus Avenue, Loftus legally described as Lots 49 and 48 in DP 13848. (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 has been held on 31 March 2025. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and employment SEPP) as to signage and various provisions of the Sutherland Local Environmental Plan 2015 (SLEP). The parties explained how the jurisdictional prerequisites have been satisfied which I now address below.

7. The development application was accompanied by a “development application signature form” signed by Andrew Nicholas Hastie, director of FSLA Property Holdings Pty Ltd the registered proprietor of Lots 48 and 49 in DP 13848, which is found at tab 10 of the Class 1 Application at folio 294.

8. The parties rely on the Applicant’s Statement of Environmental Effects (SEE) (Class 1 Application, tab 12) to assist in assessing the relevant matters.

9. The Site is zoned R2 low density residential and the proposed use as centre based child care facilities is permissible in the zone pursuant to the Land Use Table of the SLEP. Earthworks are permissible with consent: cl 6.2. SLEP.

10. There is a mandatory requirement to consider the contamination status of the Site pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 and the SEE, at folio 357, provides that:

“There is no reason to suspect the site is contaminated given the land and immediate surrounds has been used for residential purposes. The accompanying Geotechnical Report, outlines relevant considerations with regard to the groundworks proposed.”

11. The Site is not within a relevant water catchment and the terms of Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 do not apply because the NSW Spatial Viewer Mapping indicates that the Site is just outside the catchment for the Georges River as depicted in the image below which identifies the Site in yellow being outside the shaded ‘pink’ area for the catchment.

12. The Proposed Development includes signage and s 3.6 of the Industry and Employment SEPP provides that a consent authority must no grant development consent to an application to display signage unless the consent authority is satisfied firstly that the signage is consistent with the objectives of Ch 3 as set out in s 3.1(1)(a) and secondly that the signage satisfies the assessment criteria specified in Sch 5. The SEE provides (folio 358) that:

“the proposed signage is modest in dimensions and commensurate to the development size, and has been designed with a simple nature of the signage and no illuminated aspects, ensuring that the proposed signs will contribute positively to the desired amenity and visual character of the area.

Similarly, the proposal is to be constructed of high quality materials and finishes, that will ensure they are durable and will last for years to come, whilst maintaining clear and effective communication of the business.”

13. The SEE also details an assessment against the matters for consideration in Sch 5 of the Industry and Employment SEPP.

14. The Height of Building map referred to in cl 4.3 of the SLEP provides a maximum height of 8.5m and the Proposed Development seeks consent for a complying maximum height of building at 6.1m.

15. The Floor Space Ratio Map referred to in cl 4.4 of the SLEP provides the FSR as 0.55:1 and the Proposed Development seeks consent for a complying FSR of 0.35:1.

16. The Site is not a heritage item nor within a heritage conservation area: cl 5.10, SLEP.

17. The Site is not located within an area of flood risk: cl 5.21, SLEP.

18. Clause 6.4 of the SLEP provide for stormwater management and at subcl (3) provides as follows:

Cl 6.4(3) Development consent must not be granted to development on land to which this Plan applies unless the consent authority is satisfied that the development—

(a) 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, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

19. The Court has a detailed set of stormwater engineering plans - CDA031 P5, CDA032 P3, and CDA041 P3, prepared by EDGE Consulting and dated 14 April 2025 (produced at Tab 3 of Annexure B to the section 34 Agreement dated 22 May 2025) which demonstrate (addressing cl 6.4(3)(a)-(c) above) as follows:

20. Use of permeable surfaces, which is incorporated into both the landscaping generally which accords with the Council’s requirements, as well as components of the outdoor play spaces themselves;

21. Shows the location and details of the OSD’s proposed for the development; and

22. Do not have any adverse impacts from stormwater runoff as a consequence of the relevant design;

23. And further, the design is in accordance with the applicable Australian Standard as demonstrated from the extract from the BCA report accompanying the Class 1 Application (folio 207 of Tab 3 of Appendix A) reproduced below:

24. The Proposed Development dedicates 26.8% of the Site (or an area of 402m2) to landscaping as depicted in the Deep Soil Plan prepared by Greenscape DA 06 Issue D. As such the development standard requiring minimum landscaping area of 25% pursuant to cl 6.14 of the SLEP is satisfied.

25. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out above in this judgment.

26. 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.

Notations:

23. The Court notes:

24. Sutherland Shire Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA24/0089 to include the documents set out in the table below:

| TAB | DOCUMENT | DATE | | 1. | Plans prepared by Mollard Property Group Pty Ltd, project No 11912 PA00 – Cover PA01 – Site Plan PA02 – Landscaping and shaded area PA03 – Landscaping details PA04 – Ground Floor Plan PA05 – Space Management Plan PA06 – Basement Carpark Plan PA07 – Roof Plan PA08 – Emergency Evacuation Plan PA09 – Cot room, Food Prep, Sanitary and waste details PA10 – Building Elevations PA11 – Boundary Elevations PA12 – Building Sections PA18 – Existing and Demolition Plan | 28 April 2025 | | 2. | Landscape Plans prepared by Greenscape DA_00 Rev C – Site Context and Cover Page DA_01 Rev E – Ground Floor Master Plan DA_02 Rev D – Ground Floor Hard Works Plan DA_03 Rev D – Ground Floor Planting Plan DA_05 Rev B – Typical Details DA_05 Rev B – Planting Details DA_06 Rev D – Deep Soil Plan | 14 April 2025 7 May 2025 29 April 2025 29 April 2025 7 March 2025 7 March 2025 29 April 2025 | | 3. | Engineering Plans prepared by EDGE Consulting CDA001 P3 – Cover Page CDA002 P3 – Construction Notes CDA011 P5 – Erosion & Sediment Control Plan CDA021 P3 – Bulk Earthwork Plan CDA031 P5 – Stormwater & Site Grading Plan- Ground Floor CDA032 P3 – Stormwater & Site Grading Plan- Basement CDA041 P3 – Stormwater details | 14 April 2025 | | 4. | Acoustic Assessment Report prepared by Acoustic Logic | 9 April 2025 | | 5. | Plan of Operational Management for CCC Rev 2 | 11 April 2025 | | 6. | Air Quality Assessment prepared by Todoroski Air Sciences Pty Ltd | 6 March 2025 |

2. The Applicant provided the amended Development Application to the Court on 22 May 2025.

Orders:

24. The Court orders:

25. 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 ($12,000) payable within 28 days.

26. The appeal is upheld.

27. Development Application DA24/0089, as amended, for the demolition of existing buildings, construction of a single storey centre-based childcare facility (for 72 children) over one level of basement car parking, and related landscaping, to operate from Monday to Friday from 7.00am-6.00pm at 17-19 Loftus Avenue, Loftus being Lots 48 and 49 in deposited plan 13848, is determined by the grant of consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (527 KB, pdf)

Architectural Plans (25.5 MB, pdf)

POM (512 KB, pdf)

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