Guo v Sutherland Shire Council [2025] NSWLEC 1189

File Number(s): 2024/353673

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination by Sutherland Shire Council (the Council) of Modification Application No. MA24/0041 (“the modification application”).

2. The subject modification application relates to DA23/0079, lodged with the Council on 13 February 2023. This DA sought consent for alterations and additions to an existing dwelling and the installation of a lift at 127A Woronora Crescent, Como legally described as Lot 62 in DP 827126 (the Site). DA23/0079 was approved by the Council on 14 June 2023

3. The subject modification application is MA24/0041, being a Section 4.55(2) modification to DA23/0079.

4. MA24/0041 was accepted by the Council for assessment on 26 February 2024.

5. MA24/0041 sought the revision of design change conditions to permit the reinstatement of the green roof on the east elevation with 1.8m privacy screen and reinstate the west facing balcony with increased screen planting and 1.8m privacy screens along north and south elevations.

6. MA24/0041 was notified to neighbouring properties for a period of 14 days from 28 February 2024 to 14 March 2024. One submission was received from 127b Woronora Crescent. This submission raised concerns to the proposed size of the balconies.

7. MA24/0041 was approved by the Council on 13 May 2024. The approval of this modification supported the reinstatement of the green roof subject to the deletion of access from the first floor. As such, Condition 2(A)(i) was deleted from the consent. This approval, however, did not support the extension of the rear-facing balcony and retained Condition 2(A)(iv).

8. The approval of MA24/0041 is the subject of these proceedings

9. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 21 March 2025. I have presided over the conciliation conference.

10. 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 approving the modification application, subject to conditions of consent agreed between the parties.

11. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 21 March 2025.

12. 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.

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [15].

14. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

15. Firstly, 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 s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, in accordance with s 4.55(2)(a). I reach these conclusions for the following reasons:

16. The overall building form and footprint are consistent with the original consent, with both balcony 4 and the rear green roof area forming a part of the development the subject of the original consent, albeit with a minor variation to the form of the balcony.

17. Changes now sought to the private open space retain visual privacy amenity so that environmental impacts are avoided. Where amendment is proposed, it is in respect of conditions that allow additional privacy measures to neighbouring development.

18. Neither does the proposed modification alter numerical characteristics of the development in terms of height, floor space ratio, setbacks, deep soil area or landscaped area, or solar access.

19. Secondly, pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following:

20. The proposed development as modified remains permissible development within an area identified in the Sutherland Shire Local Environmental Plan 2015, with consent, and remains consistent with the objectives for development in the C3 zone:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To allow development of a scale and nature that maintains the predominantly natural landscape setting of the locality and protects and conserves existing vegetation and other natural features of the locality.

• To limit development in the vicinity of the waterfront so that the locality’s natural qualities can dominate.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that will not compromise the sensitive nature of the environment.

• To share views between new and existing development and also from public space.

2. As there are no earthworks proposed by the modification application, there is no aspect of cll 6.1, 6.2 or 6.4 of the SSLEP of relevance, and no change to the numerical values relevant to landscaped area at cl 6.14 of the SSLEP.

3. The site is not mapped within the riparian corridor, or as environmentally sensitive land in terms set out at cll 6.5, 6.6, 6.7, or 6.8 of the SSLEP.

4. 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.

5. 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.

Conclusion

14. The Court notes:

15. Sutherland Shire Council, as the relevant consent authority, has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application MA24/0041 in accordance with the documents listed below:

| No. | Drawing No/Revision | Drawing Title | Prepared By | Date | | Architectural Plans | | 1. | A46-01 Issue 05 | Site Plan | 3D Archplan | 25/02/2025 | | 2. | A46-02 Issue 05 | Existing Lower Ground Floor Plan | 3D Archplan | 25/02/2025 | | 3. | A46-03 Issue 05 | Existing Ground Floor Plan | 3D Archplan | 25/02/2025 | | 4. | A46-04 Issue 05 | Proposed First Floor Plan | 3D Archplan | 25/02/2025 | | 5. | A46-05 Issue 05 | East Elevation / West Elevation | 3D Archplan | 25/02/2025 | | 6. | A46-06 Issue 05 | South Elevation / North Elevation | 3D Archplan | 25/02/2025 | | 7. | A46-07 Issue 5 | Section A-A | 3D Archplan | 25/02/2025 |

Orders

15. The Court orders:

16. Pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0041, as amended, for alterations and additions to existing dwellings and installation of a lift, at 127A Woronora Crescent, Como, is approved.

17. Development Consent No. DA/23/0079 is modified in the terms in Annexure A.

18. Development Consent No. DA/23/0079 as modified by the Court is Annexure B.

T Horton

Commissioner of the Court

Annexure A

Annexure B

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