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[2025] NSWLEC 1230
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-09
Dixon SC
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230
Hearing dates: 2-3 December 2024; final written submissions received 20 December 2024
Date of orders: 9 April 2025
Decision date: 09 April 2025
Jurisdiction: Class 1
Before: Dixon SC
Decision: The Court orders:
(1) The appeal is upheld in part.
(2) Development consent is granted to development application DA23/0450 (except for the Torrens Title subdivision) for the demolition of existing dwellings and tennis court, retention of the existing pool, pool house and boatshed and construction of a multi-dwelling housing development comprising 7 townhouses with associated carparking and landscaping with strata subdivision at 12 and 12A Gunnamatta Road, Cronulla, subject to the conditions at Annexure A.
(3) The exhibits are returned with the exception of exhibits A – D, 6 and 7, which are retained.
Catchwords: APPEAL – development application – multi dwelling housing development – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16
Coastal Management Act 2016, s 9
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11
Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.1, 4.3, 4.4, 6.1, 6.2, 6.4, 6.7, 6.9, 6.14, 6.16, 6.17
Cases Cited: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 Royal Motor Yacht Club of New South Wales Port Hacking Branch v Sutherland Shire Council [2024] NSWLEC 1355 Terra Ferma Pty Ltd V Sutherland Shire Council [2022] NSWLEC 1522
Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, July 2015
Sutherland Shire Development Control Plan 2015
Category: Principal judgment
Parties: Gunnamatta Bay Holdings Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation: Counsel:
A Galasso SC (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Messenger Cole Solicitors (Respondent)
File Number(s): 2023/451426
Publication restriction: Nil
The applicant seeks development consent for construction and strata subdivision of a permissible (and otherwise numerically compliant) multi dwelling development on a site fronting Gunnamatta Bay in the Sutherland Shire, known as 12 and 12A Gunnamatta Road, Cronulla (site).
Having refused consent to the development application DA23/0450 (DA), the Council contends that the proposal’s compliance with numerical controls under the Sutherland Shire Local Environmental Plan 2015 (SSLEP) and the Sutherland Shire Development Control Plan 2015 (SSDCP), of itself, does not lead to the granting of development consent. Council maintains the design of the development has ignored numerous narrative controls in the SSLEP and SSDCP, both containing relevant character statements for the site, which has resulted in a proposed development that is at odds with both the built form in the immediate vicinity and the desired neighbourhood character of the R2 Low Density Residential zone.
The applicant disagrees with the Council and maintains that there is no character statement for the site. To the extent that there are any relevant statements in the SSLEP or SSDCP, the applicant contends that such controls are generic only and referable to land zones rather than to this specific precinct. Further, the applicant maintains that the proposed development – respectful of the topography, the precinct and controls relevant to the zone – represents an appropriate response to the single dwelling character.
Accepting that the proposed development satisfies the relevant preconditions for approval, the central issue is the suitability of the proposed design for the site, both presently and having regard to the likely future character of the area in which the site is located.
The site is legally described as Lot 73 DP 1284905. It is primarily located within the R2 Low Density Residential zone with the rear portion in the W2 Recreational Waterways zone pursuant to the SSLEP. ‘Muli dwelling housing’, being the purpose for which DA proposes that the site be developed, is permissible with consent in the R2 zone
It is a battle-axe allotment, of irregular shape with a site area of 5,086m2 excluding the area below MHWM, and 5,560m2 inclusive. The Lot width is 41.825m at the western boundary of the main body of the site, 9.145m width at the eastern (rear) boundary fronting Gunnamatta Bay and 8.25m at the street boundary to Gunnamatta Road.
The land falls from the Gunnamatta Road boundary (RL 17.85m AHD) to the MHWM of Gunnamatta Bay (RL 1.50m AHD), a fall of approximately 16.35m over approximately 200m (to MHWM). The southern side of the main body of the site has a fall from the south-western corner of Lot 4 (RL 15.85 AHD) to the MHWM of Gunnamatta Bay (RL 1.50m AHD) of approximately 13.8m over approximately 141.5m (to MHWM).
Access to the site is via cross over from Gunnamatta Road and a 3.5m wide driveway with an approximately 4m wide landscaped strip to the south of the handle which contains 4 canopy trees.
The access driveway serves three properties. The dwelling on the northern side of the site known as No 10 Gunnamatta Road and the two dwellings on the development site known as Nos 12A and 12 Gunnamatta Road which will be demolished.
The property at No 12A is the first property off the end of the right of way (ROW) comprising: a large circa 1990’s pastiche Victorian style dwelling with high pitched roof and dormers, with a wall 1 1/2 storey in height at the western portion of the site. There is a central open lawn area consisting of a tennis court, and a swimming pool within the rear yard.
The property at No 12 is the second property off the end of the ROW comprising: a large single-story dwelling with swimming pool, BBQ cabana and boat shed fronting Gunnamatta Bay. The maximum ridge height of the dwelling is RL 10.94m AHD. There is a centrally located large open lawn area between the dwelling and the tennis court on No 12A.
The property at No 10 Gunnamatta Road contains a single storey dwelling house which has access via a ROW over the subject site’s access handle. To the immediate west is No 14 Gunnamatta Road comprising 7 x 2 storey terrace style townhouses which have their principal private open space and northern aspect facing the access handle of the site. No 16 Gunnamatta Road contains a one and two storey single dwelling and No 18A and 18B Gunnamatta Road comprise a two-storey dual occupancy. To the immediate south are situated six detached dwelling houses which front Grosvenor Street, the property at No 8 Grosvenor Crescent contains a two-storey single detached dwelling with rear balconies facing north to the site. There are several other large single two storey dwellings along Grosvenor Crescent within the locality.
The site is subject to a height of building control for an internal lot, a floor space ratio (FSR) control, a foreshore building line, landscaped area control and is partly mapped as environmentally sensitive land (riparian lands and waterways) (Amended Statement of Facts and Contentions (ASOFC)).
As the Council submits the physical character of the locality is not contentious. It is, as Mr Mead (the applicant’s planning consultant) identified, “…a mix of low-density residential development including one or two storey dwellings of varying architectural styles and dual occupancy development. The broader locality includes some multi dwelling housing development particularly further north along Burraneer Bay Road” (Statement of Environmental Effects (SEE) at par 3.2; see Image 1 of the Joint Planning Report (JPR) par 2.11).
The site is located in a precinct wherein the “architectural design, roof forms and materiality is widely varied within the catchment of the site” (Ex 4, JPR at par 2.5). As Mr Vescio describes it “…an area where the various attributes of the character include different and varied irregular pattern of setbacks, the rhythm and pattern of front and backyards, buildings fitting comfortably into the natural landform, roof forms, roof scapes, colours…” (CWS at par C 2, see tcpt 3/12/24, p 114, LI 8 – 22).
This existing character can be appreciated from the aerial photo below (reproduced below from the Council’s ASOFC with the site outlined in red).
It shows generally large footprint buildings, with minimal side setbacks and separation between. Orientated toward the eastern water view with relatively sparse landscaped areas, planted with introduced species - not remnant species (JPR at par 2.8). The existing vegetation generally in front and rear yards provides some visual separation between buildings, however, it is to be noted that “the subject site and its neighbour to the north (midpoint of boundary) are anomalous in retaining large open unplanted areas, largely driven by tennis court uses (JPR Mr Mead at par 2.11).
It is also clear that there has been cut and fill within and around building footprints and this too forms part of the existing character as Mr Mead identified in his evidence. The surrounding area contains developments that are not typically front facing as there are many battle axe or internal allotments which, like the site, lack a street frontage and are orientated to the water view.
The desired future character is a matter at issue that I will address later.
The proposal involves the demolition of the dwelling at No 12A and associated tennis court and swimming pool, and the dwelling at No 12 together with the fibro clad garage, retaining wall and stairs.
The improvements located in the foreshore area including the swimming pool, boatshed and associated structures, and tidal pool are to be retained as they are structures contemplated by cl 6.9(2)(c) SSLEP.
Thereafter, the construction of a multi dwelling housing development with strata subdivision (comprising seven dwelling houses with associated car parking and landscaping) is arranged as follows:
“iii. Dwellings 1-2 (TH 1-2)
• two (2) x 1-2 storey dwelling houses containing three bedrooms over double garage and rear facing POS with plunge pool and access via a shared driveway to northern ROW; excavation is proposed to approximately 1.8m with finished floor level of carpark at RL12.68m AHD.
iv. Dwellings 3-4 (TH3-4)
• two (2) x 1-2 storey dwelling houses containing four bedrooms with double garage with the lower ground level providing secondary living area and access to POS and plunge pool. Access is via a shared driveway to northern ROW; excavation is proposed to approximately 2.8m with finished floor level of lower ground level at RL9.90m AHD.
v. Dwellings 5-6 (TH5 -6)
• two (2) x 1-2 storey dwelling houses TH 5 contains four bedrooms, 2 at ground level with double garage, main living area connects to east facing balcony. The lower level containing two additional bedrooms, and secondary living area with access to terrace and plunge pool.
• TH 6 has a double garage and three bedrooms at ground level with balcony accessed via the living area and bedroom. The lower level provides secondary living area, outdoor terrace and plunge pool facing Gunnamatta Bay. Access is via a shared driveway to northern ROW; excavation is proposed to approximately 3.4m with finished floor level at lower level, RL6.35m AHD.
vi. Dwelling 7 (TH7)
• Single storey dwelling house with three bedrooms with existing swimming pool, boatshed and associated POS. The terrace/POS at the northern corner is forward of the Foreshore Building Line (FSBL) as is the existing swimming pool and pool house. Excavation is proposed to approximately 1m with finished floor level at 5.95m AHD.
• The Torrens Title subdivision component of the DA for TH7 is no longer pursued. The boatshed is now to be incorporated into the strata rights for Town house 7 (TH7) in accordance with Council’s draft condition 85.
(e) Site works comprising:
(i) New driveway to connect and to match existing ROW access to Dwellings 3-7 including landscaping on both sides.
(ii) Excavation of building footprints for seven (7) dwellings and surrounds;
(iii) Landscaping of private open space areas, including six (6) plunge pools, new pathway and minor landscape works of foreshore area;
(iv) Stormwater drainage, contained to the R2 low density residential zone.”
(Council’s ASOFC Ex 6)
The following planning controls are relevant to my assessment of this development application.
Environmental Planning and Assessment Act 1979 (EP&A Act)
Environmental Planning and Assessment Regulation 2000 (EP&A Regulation)
State Environmental Planning Policy (Building and Sustainability Index: BASIX 2004) (BASIX)
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Biodiversity and Conservation) 2021
Sutherland Shire Local Environmental Plan 2015
Sutherland Shire Development Control Plan 2015
Clauses 2.10 and 2.11 of the SEPP are relevant to the consideration of the application. In respect to cl 2.10 the relevant elements of the ecological environment have been addressed in the ecological report and addendum filed with the application (Ex B tab 10 and tab 11). And, as necessary the surface and groundwater are addressed in the stormwater evidence. In short, the evidence is that the pre-development discharge rate of stormwater will be reinstated (if not improved) (Ex A tab 14). As for the quality of stormwater discharge, the proposal includes a water treatment plant that will effect a reduction in pollutants (Ex E, tab 5 sheet 103).
As there is no existing open space or safe access through or over the site cl 2.10 is not relevant.
Clause 2.11 raises the issue of “the visual amenity and scenic qualities of the coast, including coastal headlands”. To the extent that there is a “coast”, it is accepted that it is highly modified. Nonetheless, (for the reasons expanded upon later in this judgment) I accept that the design approach for separate built form and landscaping in and amongst the buildings presents a resulting built form that is highly respectful of the coastal values to the extent that they are relevant to the site (Ex A tab 25).
There are several provisions in the SSLEP to which regard must be had in order to be satisfied that consent can be granted:
The permissibility of multi dwelling housing has been addressed earlier.
Multi dwelling housing is defined as three or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
Clause 2.3(2) of the SSLEP requires a consideration of the zone objectives in the assessment of this development application.
The objectives are:
Zone R2 Low Density Residential
1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.
• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.
• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.
I deal with the zone objectives later in the judgment at [68].
A portion of the site is identified within the Riparian Lands and Watercourses Map.
Clause 6.7 sets out matters for consideration, prior to granting of development consent, on land to which this clause applies.
6.7 Environmentally sensitive land—riparian land and watercourses
(1) The objective of this clause is to protect and maintain the following—
(a) water quality within watercourses,
(b) the stability of the bed and banks of watercourses,
(c) aquatic and riparian habitats,
(d) ecological processes within watercourses and riparian areas.
(2) This clause applies to land identified as “Environmentally Sensitive Land” on the Riparian Lands and Watercourses Map.
(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—
(a) whether or not the development is likely to have any adverse impact on the following—
(i) the water quality and flows within the watercourse,
(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,
(iii) the stability of the bed and banks of the watercourse,
(iv) the free passage of fish and other aquatic organisms within or along the watercourse,
(v) any future rehabilitation of the watercourse and riparian areas, and
(b) whether or not the development is likely to increase water extraction from the watercourse, and
(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.
I deal with cl 6.7 later in the judgment at [135].
The development is subject to the height of building controls in cl 4.3 of SSLEP. The relevant clauses are reproduced below:
4.3 Height of buildings
(1) The objectives of this clause are as follows:
(a) to ensure that the scale of buildings:
(i) is compatible with adjoining development, and
(ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and
(iii) complements any natural landscape setting of the buildings,
(b) to allow reasonable daylight access to all buildings and the public domain,
(c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
(d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves,
(e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones,
(f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
…
(2D) Despite subclauses (2) and (2A), the maximum height for multi dwelling housing on an internal lot in Zone R2 Low Density Residential and Zone R3 Medium Density Residential is 5.4 metres.
The FSR control is 0.55:1 (2,797.3m2) pursuant to cl 4.4 of the SSLEP and the proposal satisfies this control at 0.375:1, which equates to 1,906.3m2: (Ex D, tab 3).
Adopting the proper construction of the SSLEP, it must be accepted that the objectives of the height and FSR development standards are reflected in the prescribed controls. As those controls have been satisfied in this case there is no proper basis to argue that the height or FSR of the development are unacceptable by returning to the objectives of the clause (Vescio at Ex 4 pars 2.34 – 2.36), the development is as the applicant submits from a numerical perspective not an overdevelopment of the site. Accepting this numerical compliance does not displace other relevant considerations about site suitability to which I will return to shortly.
I deal with cl 6.4 later in the judgment at [131].
Clause 6.9 deals with the Foreshore Building Line. The consequence of the proposal is that existing built form will be brought back behind the Foreshore Building Line. To the extent that there are other elements remaining such as the boatshed, landscaped area and swimming pools and related structures, they are all contemplated as permissible by cl 6.9(2)(c).
The site is categorised as “J” on the Landscape Area Map of the SLEP and therefore, pursuant to cl 6.14 of the SSLEP, an assessment is required of the Landscaped Area.
The control is 35% of the site must consist of landscaped area and the proposal satisfies this control at 35.6%.
No issue is raised in the geotechnical report filed with the application in regards to cl 6.1 (Ex B tab 7).
The clauses related to Urban Design at cll 6.16 and 6.17 are relevant to my assessment of this development application. They provide as follows:
6.16 Urban design—general
(1) In deciding whether to grant development consent for any development, the consent authority must consider the following:
(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,
(b) the extent to which any buildings are designed and will be constructed to:
(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and
(ii) contribute to the desired future character of the locality concerned,
(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,
(d) the extent to which the natural environment will be retained or enhanced by the development,
(e) the extent to which the development will respond to the natural landform of the site of the development,
(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,
(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
6.17 Urban design—residential accommodation
In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following:
(a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire,
(b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised,
(c) the extent to which the quality of the streetscape concerned will be improved by the development,
(d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities,
(e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised,
(f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting,
(g) any opportunities for the provision of affordable housing.
The SSDCP contains a specific chapter, Chapter 5 which sets out relevant planning guidelines for Multi Dwellings Housing in the R2 Low Density Residential zone. Chapter 39 is also relevant.
The Council contends that the introduction to Chapter 5 is a narrative control that speaks to the desired future character of the area.
Section 1, Streetscape and Building Form provides a series of objectives for the overall form of Multi Dwelling Housing in the R2 zone. Whilst all objectives require consideration, objectives 1, 2, 3, 7 and 8 are emphasised by the Council as particularly relevant in the assessment of this development application namely:
“1. Ensure that all elements of development visible from the street and public domain make a positive contribution to the streetscape and natural features of the area.
2. Create entrances which provide a desirable and safe identity for the development and assist in visitor orientation.
3. Ensure development is compatible with the scale, character and landscape setting of the streetscape, its natural setting and scenic quality.
…
7. Provide for resident amenity.
8. Buildings are to be designed and sited to acknowledge the private open space of surrounding development and spatial character of rear yards. Extensive development should not dominate neighbouring rear yards.”
These objectives are followed by a series of controls.
Section 2 contains objectives and controls for building setbacks. Objectives 1 and 3 are emphasised by the Council.
Section 4 contains Landscaping objectives and controls, and the Council has emphasised the introductory narrative for “…high quality landscape design protects and builds on the site’s natural and cultural features to contribute to a development’s positive relationship to its context and site”. The following controls are identified as of particular relevance:
“4.2 Controls
…
3. Development should be designed to retain existing canopy trees in good health in the vicinity of side, rear and front setbacks, including on adjoining land.
…
8. Appropriate paving must be provided to driveways, walkways, entries, fire egress points, garbage bin enclosures, letter boxes and clothes lines, and under pergolas.”
Section 5 contains objectives and controls for Building Layout, Solar Access and Private Open Space.
The Council contends that the introduction for this section is an important narrative control that speaks to the desired future character for the area. It reads:
“Good design provides a building layout that maximises the natural attributes of the site. Carefully considered building layout and design also creates a higher level of amenity for occupants through enhanced visual and acoustic privacy, passive heating and cooling, attractive outlooks from living spaces, and flexible and useable indoor and outdoor spaces that meet the needs of occupants. Dwelling layouts and room size should be functional and appropriate for the intended purpose and number of occupants.
Ideally, solar access should be maximised in winter and controlled in summer. Daylight consists of both diffused light and direct light. Good levels of daylight in a dwelling improve amenity and reduce the need for artificial lighting. Good levels of daylight can be achieved through the careful consideration of window size, location and proportion.
Quality private space is critical to achieving good residential amenity. Open space of sufficient area and dimensions to enable recreational and outdoor use, landscaping and service functions is needed for all dwellings.”
**“**5.2 Controls
1. New developments shall be sited and designed to maximise direct sunlight to north facing living areas, communal open space and private open space areas.
2. New developments shall incorporate passive solar building design, including the optimisation of sunlight access to living areas and the minimisation of heat loss and energy consumption, to avoid the need for additional artificial heating and cooling.
3. For at least 75% of residential units in a development, living rooms and private open spaces should receive a minimum of 3 hours direct sunlight between 9am and 3pm in midwinter.
…
5. Each dwelling is to provide an area of private open space that has a minimum area of 36m2 with minimum dimension of 5m, of which 9m2 must be paved.
…
7. The primary living area of a dwelling is to provide direct access to its private open space.
8. For the proposed multi dwelling development:
a. Orientate the area of private open space to take advantage of the northern solar access,
b. Ensure 10m2 of private open space has 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June).
c. Overshadowing by vegetation should be ignored,
d. Overshadowing by fences, roof overhangs and changes in level should be taken into consideration.
9. For the neighbouring dwellings:
a. Ensure 10m2 of private open space has 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);
b. Ensure windows of living areas have 3 hours of solar access between 9:00am and 3:00pm at the winter solstice (21 June);
c. Consideration will be given to reduced solar access where the proposed dwelling is generally compliant with all development standards and controls, and the extent of impact is the result of orientation, site constraints, and or existing built forms;
d. Overshadowing by vegetation should be ignored;
e. Overshadowing by fences, roof overhangs and changes in level should be taken into consideration.”
Visual and Acoustic Privacy objectives and controls are dealt with in Section 6 of the SSDCP.
The objectives are as follows:
“6.1 Objectives
1. Ensure a high level of amenity by protecting the acoustic and visual privacy of occupants within dwellings and their associated private open spaces.
2. Ensure dwellings are sited and designed so that visual and acoustic privacy and vibration from outside sources is controlled to acceptable levels.
3. Minimise direct overlooking of windows and private open space so that the amenity of neighbours and intended occupants is respected.
4. Recognise the outlook and views from principal rooms and private open space without compromising visual privacy of others.”
“1. Locate, orientate and design new development to maximise the provision of visual privacy.
2. Use detailed site and building design elements to increase visual privacy without compromising access to light and air.
3. Living room, dining room and kitchen windows that provide a direct outlook to an adjacent property dwelling which leads to a loss of amenity, needs to consider the following:
a. offset the edge of one window to the edge of the other window by a sufficient distance to limit the views into the adjacent windows; or
b. provide sill heights of at least 1.6m; or
c. have fixed obscure glazing or glass blocks in any part of the window below 1.6m.
d. direct the outlook from all living rooms, dining rooms, bedrooms, kitchens and studies where possible towards the street, private open space on the development site, public open spaces, and waterways.
e. where overlooking of adjacent living rooms, dining rooms, bedrooms, kitchens and studies or private open space is unavoidable then screening elements such as louvres and obscured glass must be used to preserve reasonable visual privacy for neighbours.
…”
| Expertise | Applicant | Respondent | Joint Expert Reports | | Arboricultural and Landscaping | Ross Jackson and Robert Frew | Catriona Mackenzie | Ex 5, (JER Aboricultural and Landscaping) | | Town Planning | Jeff Mead | Joe Vescio | Ex 4, (JPR) |
Following amendment of the DA and the provision of further information, including agreement in respect of the conditions, many of the contentions have been resolved between the experts.
The principal contention remaining is whether the proposal is compatible with the existing and desired future character of the area having regard to the provisions of the SSLEP and the SSDCP.
Before anything else I will address the parties’ interpretations of the zone objectives within the SSLEP.
The applicant accepts that cl 2.3 of the SSLEP requires a consideration of the R2 zone objectives in the assessment of the development application.
The applicant submits that the first objective of the R2 zone is to provide for the housing needs of the community within a low-density residential environment. Yet, it also identifies that the fifth objective acknowledges the existence of a residential development in the form of multi-dwelling housing which by its nature has the capacity to be greater than “low density”. The only prescriptive element against an approval of that from of development being to “…ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.” (Objective 5) (applicant’s written submissions (AWS) at par 8).
The applicant maintains that the proposed development does not represent that proliferation, and that an approval of this DA will not result in a “cumulative impact of muti dwelling housing” such as to diminish “the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone”.
In arguing that there is no specific desired future character statement for the site under the SSLEP or the SSDCP, the applicant submits on the evidence of Mr Mead that the development has been designed to fit in with the character sought to be achieved by the R2 zone objectives under the SSLEP by achieving the relevant development standards in respect to height, FSR and landscape area and is otherwise compliant with the relevant controls in the SSDCP (and to the extent that it breaches any control, it does so in an acceptable way (Ex 4, p 21 at par 5.1).
The Council acknowledges that the R2 zone objectives are relevant considerations under cl 2.3, and submits that “[t]hey express an important narrative control within which the development is to be viewed, regarding its achievement or performance with them as well as character fit” (CWS at par B3).
Accepting that multi dwelling housing is permissible in the Sutherland Shire, including at this site, the Council submits that the R2 zone objectives seek a low-density residential environment (CWS at par B4) and for the reasons expressed by Mr Vescio they are not met by this proposal. Mr Vescio’s evidence is that “…compliance with the numerical standards relating to FSR, landscaped area and height is just the cusp of compliance.” Further, he says when “... comparing the proposal relative to the urban morphology of the local surrounding R2 zone, the proposal does not represent sufficient consistency or compatibility with the local character, which is typically representative of a low-density residential environment occupied by street fronting domestic scale dwelling houses and dual occupancies … the proposal is more reflective and commensurate with ... medium density development, particularly when viewed from surrounding properties and the water, as the layer[ed] and cascading of the built form is more akin to a multi-storey resort style residential flat building rather than detached houses.” (Ex 4 at pars 2.27 – 2.34).
Skipping zone objective 2 – as it is not relevant – the Council submits that zone objective 3 requires the applicant’s development “to protect and enhance existing vegetation and other natural features … particularly along ridgelines and in areas of high visual significance”. It contends that the vegetation on the upper part of the site is within a ridge line and thereby needs to be retained in accord with the objective (consistent with the agreed evidence of the arborists).
The Council also contends on the evidence of Mr Vescio, the site inspection and the large-scale zoning map (Ex 1 tab 1) that the site is one of high visual significance as referenced in zone objective 3 (CWS at par B4). An objective which it submits is reinforced by State Environmental Planning Policy (Resilience and Hazards) 2021 (RHSEPP) which points to the identification of the character of this waterfront R2 zone area as “coastal” and invites development that by its “…type, bulk scale and size” avoids adverse impacts and seeks “to protect and enhance the scenic … values of the coast” (CWS at B2). An outcome, that is achieved by observing the management objectives of the Coastal Management Act 2016 (CM Act) s 9(2)(a) (now incorporated into Ch 2 of the RHSEPP).
These management objectives include the numerous narrative controls in s 2.10(1)(a) –(b), (e) and s 2.10(2)(a) of the RHSEPP, which recognise and accommodate both the natural character and scenic values of the coast and the urbanised development along it and being a “…highly utilised regional public recreation resource”. Management measures that the Council submits collectively speak to the desired future character for this site (CWS at par B 1-2).
The Council contends that the natural landform of the site will be totally displaced by the excavation of all the developed parts of the site to bedrock to accommodate an overly ambitious development of 7 x 300m2 dwellings (Tcpt 3/12/24 p 118 LI 14 – 20 Vescio: Excavation plan Ex D tab 5; Ex A tab 15 and Ex B tab 7 (CWS at pars B 5 and 6)). An outcome, it submits that is plainly contrary to zone objective 4. An objective which the Council contends sets out narrative controls to achieve a compatible character, and sufficient area having regard to the overall area to be developed and seeks to retain the site’s natural features.
In relation to the final zone objective the Council is critical of the applicant’s single focus on the prescription against the proliferation of multi dwelling housing form. And submits that “[n]otwithstanding, the narrative control [is] clearly relevant and [it] has more to do when considering the proposal design” (CWS B 8) as such the development is said to fail on that objective also.
The Council submits that the proposed design ignores the numerous character statements in the SSDCP that speak to the desired future character of the neighbourhood referenced in the zone objectives. As such, it argues that the proposal itself exemplifies, a proliferation of multi dwelling development, contrary to the zone objectives.
Further, the Council submits that its analysis of the various controls (as discussed at par B9-12 of its CWS) also demonstrates the development’s non-compliance with the zone’s objectives. The analysis referred to invites a consideration of the instruction in SSDCP entitled “How to use this plan” which reads as follows:
“An introductory statement sets out the existing and desired future character in each zone or locality. Each suite of controls contains a statement of intent supporting and explaining the objectives and development controls.” (Ex 1 p 218)
“The R2 Low Density Residential zone is applied to traditional, low density residential areas within Sutherland Shire. The zone allows for a variety of housing types as well as facilities and services to meet the needs of the community. However, all forms of development are required to be at a scale and density that is compatible with the single dwelling character of the locality.
The controls relating to multi dwelling housing within the R2 zone aim to ensure that new development fits comfortably within the established landscaped character, neighbourhood character and streetscapes of these low-density localities. Infill multi dwelling housing needs to preserve and enhance the garden and bushland settings in the zone and deliver well designed homes which offer amenity to local residents while protecting neighbours' amenity.” (CWS at B 9).
The Council emphasises the following text “…traditional, low density residential areas …a variety of housing types … However, all forms of development are required to be at a scale and density that is compatible with the single dwelling character of the locality.”
The statements of intent supporting and explaining the objectives and development controls are also underlined as informing the desired future character for this site (Ex 1, p 218). Referencing the character requirements, the Council submits that the controls seek to ensure that *“…*new development fit**s comfortably within the established landscape character, neighbourhood character and streetscapes of these low-density localities” (CWS at par B 9). This is an outcome not achieved in the proposal.
The Council submits that the narrative control in the introduction to Chapter 5 (a), in speaking to the desired future character, seeks infill multi dwelling housing that “…preserv*[s]* and enhance*[s]* the garden and bushland settings in the zone*,* and deliver*[s]* well designed homes which offers amenity to the local residents while protecting neighbours’ amenity” (CWS at par B 9).
Based on the evidence of Mr Vescio, the Council submits that the amenity missing in the proposal is “high quality design and solar access” (CWS at par B 11). It emphasises Mr Vescio criticism of the design’s poor internal solar access for the proposed dwellings in Court and in (Ex 4 para 6.12,6.16-20, and Ex (d) plans) as evidence of the fact that the development does not achieve the specific character statement in the introduction to Chapter 5 for multi dwelling housing in the R2 zone ( EX 1 p 227 par 2) which seeks delivery of “…well designed homes that offer amenity”. The minimal windows to the north and almost total reliance of the proposal on some morning eastern sun and small pockets from skylights windows are features said to demonstrates that this building layout does not achieve the narrative control for the desired future character that “ideally, solar access should be maximised in winter and controlled in summer” (Ex 1 p 240 intro par 2). An ideal, the Council contends is clearly an option available and if adopted would offer a higher level of amenity for occupants with enhanced passive heating and cooling. The Council rejects of Mr Mead’s evidence that excuses this poor design by focussing on purely minimalist setbacks and number requirements with disregard for the applicable narrative controls.
Advocating consistency with an approach said to have been adopted by the Court in an earlier application for multi dwelling housing on the site Terra Ferma Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1522, the Council advises it holds the position that the objectives and controls in Chapter 5 (a) specify an objective process to assist in the subjective assessment as to whether this infill development achieves the existing and desired compatibility (CWS at par B 9). They invite me to adopt the same approach in this case.
Insofar as the controls in the SSDCP are concerned (both empirically and performance based), the applicant contends on its evidence that the development appropriately responds to the context and is responsive to those controls. The result, it submits, is a development which “…fit(s) comfortably within the established landscape character, neighbourhood character and streetscapes of these low-density localities” through its compliance with the controls dealing with height, FSR and landscape area. Additionally, by its form, the development is said to “preserve and enhance the garden and bushland settings in the zone and deliver well designed homes which offer amenity to the local residents while protecting neighbours’ amenity”. And, in circumstances where the controls in the SSLEP are satisfied and there are no residual issues of impact with adjacent properties in terms of privacy or overshadowing, it submits that proposal achieves the narrative in the SSDCP even if it were to be regarded as prescriptive – when it is not.
The objectives of streetscape and building form (Ex 1, p 228) are said to be satisfied including objectives 3 and 8 based on the applicant’s planning and engineering evidence.
In addressing the controls in Section 1.2 of the SSDCP the applicant emphasises that Mr Vescio conceded in oral evidence that a 60% depth in respect to development must be measured having regard to the fact that this is a battle axe site. In that context the access handle cannot be part of the site for the purpose of measuring the developable portion. This approach is said to be consistent with the terms of cl 4.1(3B) of the SSLEP and the exclusion of the access handle when calculating lot size. On that basis there can be no criticism of the design in respect of its setback from the property boundary.
The applicant identifies that the development steps down the site albeit that it may not be regarded as a “steep site”: Control 1.2 (6), and the built form avoids large expanses of unbroken wall to visually reduce the bulk: Control 1.2 (8).
The applicant submits that the development has been amended and sensitively designed so that it is sympathetic to the amenities and view corridors of neighbouring property’s private open space: Control 1.2 (3).
The building setbacks are agreed to be appropriate and satisfactory: Control 2. Noting that the planners are agreed that the non-compliance in respect of Townhouse 7 is nonconsequential (Ex 4 at par 5.1).
The applicant contends that the landscape is respected in the design of the development. The benching is necessary to establish the ground and first floors of each dwelling. They cascade down the hill following the slope and the natural ground level will be reinstated prior to completion of the works. The applicant submit that it would be impossible to build on a slope without benching as evidenced by the surrounding development.
The landscaping controls are satisfied with the retention of significant trees based on the arborists and landscape evidence and the conditions : Control 4.2 (3).
The building layout, solar access and private open space are all satisfied in that the required solar access is achieved for 75% of the dwellings, and 100% of the proposed dwellings have solar access for more than 3 hours in midwinter to private open spaces and living rooms: Control 5.2 (3).
According to the applicant the only residual debate between the parties concerns the notion of “maximis[ing] direct sunlight to north facing living areas” in circumstances where the design approach to the east for living areas has been adopted to take advantage of the predominate water view to Gunnamatta Bay and potential privacy issues . While Mr Vescio‘s subjective expert evidence was that the living areas should face to the north to take advantage of the solar access (Tcpt 3/12/24 p 82 LI 20 – 31). the applicant submits it is at odds with the agreed position in the JPR (Ex 4 p 22 at par 5.5) that “there are no significant visual privacy issues caused by the proposal on adjoining properties, or internal within the development. This is achieved by the defensive treatment of northern and southern elevations and through placement of living areas and corresponding “non-living space” in opposing buildings within the site”.
Having regard to the above the applicant submits that the development appropriately responds to its context and is responsive to the relevant SSDCP controls.
One of the key methods by which each residential zone provides for the housing needs of the community within the applicable residential environment is by prescribing the residential development that is permitted with consent in the zone (Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [67]).
As the applicant identifies, while the planning regime acknowledges the area as a low-density residential environment (first zone objective), it also specifically contemplates multi dwelling housing (fifth objective). The proscriptive element being a caution to a cumulative impact of that type of housing to ensure the single dwelling character, landscape character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by this form of housing or seniors housing ((AWS) at par 8).
As the definition makes clear multi-dwelling housing has many different forms. In this instance it is a series of detached dwellings cascading down the site toward the water.
As there is no character statement in the SSLEP or the SSDCP that specifically applies to the site, I accept that an assessment of the proposal’s compatibility with the existing and desired future character of the area is expressed through the zoning and relevant planning controls (Ex 4 par 2.6) together with an appreciation of the surrounding built form.
In this instance, the proposed multi dwelling housing, is a permitted use on the site, and the evidence is that the development is compliant with all key development standards including height, FSR and landscaped area. The proposal is also largely compliant with the setback controls except for the southern elevation to TH 7 which is agreed by the experts to be acceptable. Considering such compliance with each development standard applicable to the built form in the SSLEP, being height, FSR and landscaped area and my own observations of the area I accept Mr Mead’s expert assessment that the development is not an overdevelopment of the site. Typically, overdevelopment is levelled at development that exceeds the planning controls or that is significantly greater in scale than the surrounding development or has significant amenity impacts on the surrounding properties or within the development itself. Yet none of these issues arise with the amended proposal in my assessment of all of the evidence.
I reject the Council’s submission that Mr Mead’s assessment of compatibility with character ignores the physical characteristics of the site as reflected in the surrounding low density residential development, and in the narratives that inform the existing and desired future character of the area in the SSDCP Chapter 5 (a).
Mr Vescio’s approach in Ex 4 Image 3 of overlaying a site area similar to that of the site on adjoining properties to count the acceptability of the proposed number of dwellings does not assist the character assessment. It ignores footprints and organisation of buildings and landscaping. Assessment of character must place emphasis on the planning controls. Bulk, scale and built form must be appraised against the SSLEP and the SSDCP and other relevant controls. On that basis the evidence supports a finding that the proposal is at the very least compatible with the desired future character, if not entirely as Mr Mead concludes.
Mr Vescio accepted that the character of the zone and near the site alters from south to north (Vescio Tcpt 3/12/24 p 105 LI 36 – 49). He also agreed under cross examination that a design approach that splits the buildings into a series of town homes is responsive to that changing character.
Based on this evidence I accept that the adoption of a form of development involving separate dwellings is entirely appropriate for this site when one considers the settlement pattern identified (Ex 4 pars 2.4-2.6). As I observed at the site inspection, the surrounding properties contain of a wide variety of built forms including one and two storey dwellings, dual occupancy development and townhouses as summarised at [18].
In short, architectural designs, roof forms and materiality, in Mr Vescio words, are “… widely varied within the visual catchment of the site” (CWS at par C 1).
The policy framework of the SSLEP invites different forms of multi dwelling housing the only proscription being against a proliferation of that form, and in my assessment this proposal does not create such a proliferation.
I accept that the narrative controls for the desired future character are subjective and that they have been considered and incorporated where appropriate in the design. Mr Mead’s evidence is that the proposed dwellings are of high-quality design and will enjoy a high level of solar access, cross ventilation, outlook and overall amenity. While the dwellings have not been designed to be orientated to the north, I accept Mr Mead’s expert assessment that a design to the northern side boundary would introduce privacy issues. Instead, the dwellings are oriented to the waterfront view like the surrounding developments and the privacy and solar access control are achieved.
Insofar as multi dwelling housing in the R2 zone aims “to ensure that new development fits comfortably within the established landscape setting character, neighbourhood character and streetscapes of these low-density localities” I accept that this character objective has been achieved in the design. The design has been informed by the objectives and control in Chapter 5 of the SSDCP based on the applicant’s evidence as summarised at [85] - [95] above.
The development is “compatible with the scale, character and landscape setting of the… natural setting and scenic quality” and “designed and sited to acknowledge the private open space of surrounding development and spatial character of rear yards … [and] not [to] dominate neighbouring rear yards”: thereby seeking to achieve the objectives of the Streetscape and Building form - (Ex 1 p 228) Objectives 3 and 8.
The building setbacks are appropriate. The slight noncompliance generated by TH 7 is agreed to be of no consequence, and Mr Vescio’s concern about an overshadowing impact on the dwelling immediately to the south of TH 6, owned by Mr Chavelor, who is an objector to the application (Tcpt 03/12/24, p 65) was proved to be unwarranted on the provision of further interrogation of additional information about that property.
To the extent that it is said that “infill multi dwelling housing needs to preserve and enhance the garden setting and bushland settings within the zone and deliver well designed homes which offer amenity to local residents while protecting neighbours’ amenity”, I accept that the development as designed achieves that outcome.
The evidence is that the elements in cl 6.16 Urban design–general of the SSLEP have been considered by Mr Mead. I accept his evidence that the buildings have been designed and will be constructed to strengthen, enhance and integrate into the existing character of the neighbourhood, even if the neighbourhood is non distinctive: subs (b), and that the proposal responds to the natural landform of the site by cascading down the frontage of the site to the waterway: subs (e).
For completeness, I do not accept that the site has a “high visual quality” - it is clearly visible but no more than the adjoining development on that side of the Bay. The reasoning of the Court in Royal Motor Yacht Club of New South Wales Port Hacking Branch v Sutherland Shire Council [2024] NSWLEC 1355 which dealt with a mooring extension into the Bay does not elevate this site’s visual prominence and to my thinking is irrelevant to this case.
Further I am satisfied having considered the urban design elements in cl 6.17 that there is no issue of impact on adjoining land in terms of overshadowing, overlooking, views privacy and visual intrusion. I am satisfied on the evidence that the residential accommodation integrates within the well-designed landscape setting (landscape plans Ex D tab 2 sheet L03).
The landform and natural setting are respected by this development. The benching is necessary to establish the ground floor and first floor, but the natural ground level (already disturbed) is required to be reinstated adjacent to each new dwelling prior to completion of the development (Ex 1 p 236 Objective 3.2(2)).
It was apparent at the site view and from the view impact analysis before the Court that the existing western most residence on the site presently intersects with many of the views from the adjacent development (Ex A, tabs 10 and 24). With the demolition of the existing dwelling the evidence is that the proposal results in an opening up of water views from these neighbouring properties to Gunnamatta Bay.
The proposed development will also move the existing built form back behind the foreshore building line and introduce new landscaping at that level when viewed from the waterway (Ex A, tab 25). Given the orientation of the living areas to the east and the water view, there is no complaint about adverse privacy to the neighbouring properties.
The landscaping controls in the SSDCP are satisfied, in particular the retention of existing significant and healthy trees on the site and the adjoining land: Control 4.2 (3).
To the extent that zone Objective 3 of the SSLEP seeks to protect existing vegetation etc – the parties arborist/landscape Ms Mackenzie and Mr Jackson are agreed that subject to the imposition of the conditions this zone Objective is achieved. This agreement is the result of extensive investigation including root mapping. The arboreal/landscape evidence is that “… as far as reasonably practical” the significant and healthy trees can be retained and managed, by the imposition of the conditions which include the placement of permeable paving on the driveway surface and specified engineering of the driveway and drainage. The conditions also include the requirement for a tree protection plan and its incorporation in the conditioned construction management plan (conditions 8 and 9 of the conditions).
The impact of the proposed development on Tree 34 is agreed to be satisfactorily addressed by the amended plan in Ex D. Subject to the corrected civil plans (received by the Court on 11 December 2024) that have pulled the proposed development back in the vicinity of Tree 7, the impact of the proposed development is agreed to be addressed.
Mr Jackson’s concern about the retention of the driveway gradient and the replacement of the impervious pavers with the permeable solution to improve the trees adjacent to the driveway on and off the site is also resolved by the further updated civil plans and the conditions. Species selection is accepted by Ms Mackenzie and the development will satisfactorily achieve the greenweb control the detail of which is captured in the landscape plans (Ex D).
Mr Vescio gave evidence against the proposal’s technical compliance for sunlight penetration and reliance on skylights and the clerestory roof for such compliance (Tcpt 03/12/24 p 80 Ll 30 - 37). He believes that the design’s orientation to the eastern water view rather than the north facing windows is unjustified given the northern boundary opportunity. While Mr Vescio accepted that a 1m2 minimum may be acceptable for a 50m2 unit, he did not believe it acceptable for a 300m2 dwelling and thereby offended cll 6.16 and 6.17 of the SSLEP for high quality urban design. He also gave evidence that the design fails controls 1, 2 and 3 of 5.2 of the SSDCP in relation to solar access – as he did not accept that numerical compliance with one of the controls is sufficient to demonstrate high quality design.
As stated, Mr Mead gave evidence that detailed design analysis for the site had determined that the inclusion of windows in north facing living areas in the development would have introduced a range of new amenity issues and non-compliances with the SSDCP. He invited the Court to appreciate that the pattern of development in the location is for side boundaries and side elevations to deal with reciprocal privacy relationships between properties. This scheme adopts the same approach - not to face the living rooms directly on neighbours to the north. I accept the reasoning behind that aspect of the design.
As the SSDCP does not provide a methodology for calculating solar access, Mr Mead said that it was unreasonable to apply the Apartment Design Guide (ADG) approach to solar access. Mr Mead disagreed with Mr Vescio’s evidence that the living rooms only received 1m2 of solar access at the relevant time and gave evidence that the architect’s compliance table indicated considerably more than that figure. In answer to Mr Cole’s question as to whether the development complies with Control 1 in Section 5.2 – “that the buildings have been designed to maximise direct sunlight to north facing living rooms”, Mr Mead said the dwellings had been designed to maximise solar access to the living rooms, and the reason why that’s not coming from the northern elevation is because that would be contrary to a response of site design that exhibited design excellence. The better design for solar access in accord with the SSDCP in this case is achieved through the eastern façade, skylights, clerestory windows, rather than facing living rooms right at the northern boundary” (Tcpt 03/12/24, p 62 at Ll 5-15). I accept is expert assessment.
The contentions do not raise any issue with the location of private open space (POS). Every dwelling has POS directly accessible from the main living area as well as POS at ground level accessed from secondary living spaces. In Mr Mead’s assessment the solar access to that POS is compliant and there is no satisfactory evidence to the contrary in my assessment.
Clause 6.2 of the SSLEP requires my consideration of the matters in subcl (3) in deciding whether to grant consent to earth works.
The Council is critical of the cut and fill proposed in the application.
The amended geotechnical report (Ex A tab 15 p 1) identifies the depths of excavation for the development being at 2.6m for TH1 and TH2, 3.0m for TH3 and TH4 and 3.8m for TH 5 and TH 6 and for the single-storey house with garage TH 7 a depth of 1.5m resulting in a total stripping of the natural landform back to bedrock (Ex B). As such, the Council contends these earthworks will have a detrimental impact on “environmental functions and processes … or features of the surrounding land” and thereby offend the relevant matters called up for consideration by cl 6.2(3) (a) and (b). Further, it submits that there is insufficient detail in the plans for the Court to be satisfied of the matters in cl 6.4(3) (a) ,(b) and (c) and, therefore, must refuse consent (CWS at pp 11 ,12).
As the applicant submits the depths of cut that is identified by the Council are maxima but necessary as the land is sloping. To provide for a flat dwelling site there needs to be a larger extent of cut at the upper side than the lowest side of each dwelling site. In turn, such earthworks necessitate engineered drainage and new landscaping.
As observed the natural landform is already altered and developed with large residences and pools - the tennis court on the site for the existing dwelling (western most) is in an area of cut relative to the level of its associated dwelling. The applicant contends on its evidence that the landform has been respected in the design, despite the benching necessary for the purpose of establishing the ground and first floor of each town house. Notwithstanding that, it will cascade down the slope, within the natural slope, as the development contemplates the reinstatement of natural ground level on completion of works – to accord with the controls in Section 3.2 SSDCP.
After a consideration of the matters raised by cl 6.4(3) SSLEP against the evidence (including the amended geo tech report (Ex A), the final stormwater and landscape plans – which rely on reinstated soils in retaining walled areas, detention tanks, and an engineered stormwater piped solution, I find that the proposal is acceptable, again subject to the conditions. Importantly, those conditions include stringent measures to protect adjoining properties and public land during excavation to contain the fill and require suitable drainage and control of erosion and sediment so that no substance other than rainwater enters the stormwater system and waterway (conditions 44 and 46).
As already identified the site is mapped in part as environmentally sensitive land (riparian land and waterways). Clause 6.7(3)-(4) of the SSLEP sets out matters for consideration prior to the grant of development consent namely:
6.7 Environmentally sensitive land—riparian land and watercourses
(1) The objective of this clause is to protect and maintain the following—
(a) water quality within watercourses,
(b) the stability of the bed and banks of watercourses,
(c) aquatic and riparian habitats,
(d) ecological processes within watercourses and riparian areas.
(2) This clause applies to land identified as “Environmentally Sensitive Land” on the Riparian Lands and Watercourses Map.
(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—
(a) whether or not the development is likely to have any adverse impact on the following—
(i) the water quality and flows within the watercourse,
(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,
(iii) the stability of the bed and banks of the watercourse,
(iv) the free passage of fish and other aquatic organisms within or along the watercourse,
(v) any future rehabilitation of the watercourse and riparian areas, and
(b) whether or not the development is likely to increase water extraction from the watercourse, and
(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.
The Council submits that cl 6.7 is a further narrative control applied by the SSLEP to most of the subject site (CWS par E 7).
The proposal relies on a large detention tank and electrically operated filtration system rather than all natural processes for movement of water and infiltration through the land (drawings 102 and 103 Ex A tab 4). The Council contends that this will have an adverse impact on the site for ecological processes of the Riparian area.
Relying on the objectives in subcll (1)(a) - (d) in cl 6.7 the Council’s submits “the proposal seeks to substitute the natural landform and process for an electrically powered, maintenance demanding, non-natural engineered solution resulting from the complete lack of respect for the natural landform. It is for the Court to determine whether the design ‘assures’ no detrimental impact on the site for the ecological processes of this Riparian area, and whether there is an adverse impact in introducing this engineered, man-made solution into the R2 Zone and whether it is in character with it.”
Referring to cl 6.7(1)(d) the Council further submits that the engineering is “… a contrived process which is clearly not the intention for preserving the character of environmentally sensitive land” (CWS at par E 7).
As it stands there is no evidence before the Court brought by the Council or anyone else to suggest that an approval of this development will have a detrimental impact on the ecological processes of the Riparian area. In fact, the expert engineering evidence is to the contrary in that the development has been designed, sited and will be managed to avoid any significant adverse environmental impact subject to the imposition of the conditions.
It is recognised that this development is opposed on the ground of character; but equally, recognition must be given to the fact that the controls within the policy framework of the SSLEP contemplate many different forms of residential development. The only proscription is against a proliferation of a particular form (Ex 1, p 21). Therefore, it follows, given the existing variability of the form of residential development in the immediate area of the site and the R2 zone, that approval of this multi-dwelling development will not result in a cumulative impact such as to diminish “the single dwelling character, landscape character, neighbourhood character and streetscape of the zone”, all relevant matters to which I must have regard when determining the present development application (cl 2.3 of the SSLEP). As I have sought to demonstrate, I have had regard to those matters when determining the present application.
While the term “desired future character” is not defined in the SSLEP or in the SSDCP, Mr Mead expressed the opinion that the concept is informed by having regard to the R2 zone objectives, the numerical controls in the context of the existing development in the immediate area and zone that has been approved under those controls. The development is compliant with the key development standards. Notwithstanding, I have also considered the relevant provision of the SSDCP – though, I again note the generic character statements in that policy do not displace the statutory provisions in the SSLEP and State policies to define the “desired future character” for this site. Moreover, as the Court has made clear: when a development has fulfilled all relevant controls in the SSLEP, there must be an expectation that it has achieved the objectives of the controls – including the “desired future character” for that site.
In my consideration of relevant matters in accord with s 4.15 of the EPA Act I have considered the public interest. The submissions voiced at the commencement of the hearing onsite fall broadly into two categories. Objectors who spoke expressed concerns about the impact on their amenity, both during and after the build. Consistent with written objections received, they viewed the proposal as an “over-development”, detrimental to and out-of-character with the existing neighbourhood.
I have carefully considered all such objections and as they have been addressed in the Council’s contentions and by the expert evidence presented, I have formed the view that the development should be granted a conditional consent.
Importantly, I am satisfied that the conditions proposed by the Council include measures for dilapidation reports before excavation and safeguarding their amenity during the build. The hours of construction will be specified and matters of dust and noise controlled by specific standards.
Though the application before the Court regarding the boatshed seeks a Torrens Title subdivision of the single consolidated lot into two lots: one for the W2 land; the other for the residue lot (to form part of the strata subdivision, which is in the application before the Court), it is recorded as agreed (to obviate the creation of a separate allotment with potential terrestrial access issues) that the boat shed is now to be incorporated into the strata rights of TH7 – in accordance with condition 85, a course that is within the power offered by s 4.16(4) of the EPA Act.
Accordingly, for the reasons stated and after a consideration of all of the evidence I have decided to grant consent to the strata subdivision and to the built form, the subject of the plans in Ex D subject to the imposition of the conditions.
The Court orders:
The appeal is upheld in part.
Development consent is granted to development application DA23/0450 (except for the Torrens Title subdivision) for the demolition of existing dwellings and tennis court, retention of the existing pool, pool house and boatshed and construction of a multi-dwelling housing development comprising 7 townhouses with associated carparking and landscaping with strata subdivision at 12 and 12A Gunnamatta Road, Cronulla, subject to the conditions at Annexure A.
The exhibits are returned with the exception of exhibits A – D, 6 and 7, which are retained.
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Typographical error corrected at [132] to include cl 6.7 of the SSLEP.
Gunnamatta Bay Holdings Pty Ltd
Sutherland Shire Council [2025] NSWLEC 1230