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Hills v Sutherland Shire Council [2025] NSWLEC 1811 | Case summary | Zoe

NSWNSWLEC

Hills v Sutherland Shire Council

[2025] NSWLEC 1811

Land and Environment Court (NSW)|2025-11-20|Before: Espinosa C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-11-20

Before

Espinosa C

Catchwords

DEVELOPMENT APPEAL – residential development – alterations and
additions – conciliation conference – agreement
between the parties
– orders

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPEAL – residential development – alterations andadditions – conciliation conference – agreementbetween the parties– orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Hills v Sutherland Shire Council [2025] NSWLEC 1811

Hearing dates: Conciliation conference held on 5 November 2025

Date of orders: 20 November 2025

Decision date: 20 November 2025

Jurisdiction: Class 1

Before: Espinosa C

Decision: The Court orders:
(1) The Class 1 Application appeal is upheld;
(2) Development consent is granted to Development Application No DA25/0057 for alterations and additions to an existing dwelling and swimming pool at Lot 15, DP 6309 known as No 253 Attunga Road, Yowie Bay subject to the conditions set out in Annexure A.

Catchwords: DEVELOPMENT APPEAL – residential development – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 6
State Environmental Planning Policy (Resilience and Hazards) 2021, Div 3 Ch 2, cl 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.6, 6.1, 6.4, 6.5, 6.7, 6.8, 6.9, 6.14

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA25/0057 seeking consent for alterations and additions to an existing multi storey dwelling and modifications to an existing swimming pool and spa (Proposed Development) at 253 Attunga Road, Yowie Bay legally described as Lot 15 in DP 6309 (the Site).
The Respondent raised a number of contentions in a Statement of Facts and Contentions filed on 18 June 2025 which were considered by the parties:
town planning experts in a Joint Expert Report Planning (JER Planning) filed hard copy on 9 October 2025 and electronically 15 October 2025; and
stormwater engineering experts in a Joint Expert Report Stormwater filed 29 October 2025.
The Applicants have now addressed the contentions by way of amended plans and the provision of revised additional information.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 5 November 2025. I presided over the conciliation conference.
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.
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.
The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
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 cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court and orally during the conciliation conference.
The Applicants to the proceedings are of the owners of the Site.
The Site is zoned C3 – Environmental Management, pursuant to the SSLEP and pursuant to the Land Use Table of the SSLEP, development for the purposes of ‘dwelling houses’ and subsequent alterations and additions to dwelling houses is permitted within the C3 zone with development consent.
The Development Application was notified in accordance with the Respondent’s Community Engagement Strategy 2022 – 2026 from 4 February 2025 and 20 February 2025. The Respondent received one submission from an adjoining property owner which raised matters concerning loss of privacy, insufficient information, building line depth and impacts on views. The amendments made to the plans and the imposition of appropriate conditions adequately address the matters raised by the objector and I have considered the explanation and reasons given by Mr Apps in the JER Planning.
The Site is located within the Port Hacking Water Catchment and as such pursuant to s 6.1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), the terms regarding water catchments in Ch 6 of the Biodiversity and Conservation SEPP do not apply to this Site.
The Site is mapped as ‘Coastal Environmental Area’ and ‘Coastal Use’ and the provisions relating to coastal management in Ch 2 of the Resilience and Hazards SEPP apply to the Proposed Development. Below I reproduce an assessment of the Proposed Development in respect to the relevant clauses of Ch 2 as provided by the Applicant:

| **Chapter 2, Division 3 - Section 2.**10; Division 4 Section 2.11 | | Section | Requirement | Proposal | | 2.10 | (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following— (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone. (2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), 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. (3) This section does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. | The proposed works relate to alterations and additions to an existing dwelling with limited disturbance beyond established building platforms at the site. As such, proposed works will not likely result in impact on the integrity or resilience of the environment, any coastal environmental values, natural coastal processes, water quality, or marine flora and fauna. Aboriginal cultural heritage, practices or places are not likely to be encountered or adversely affected given the site has been cleared and developed previously. No relics were found following inspection of the site. Given the considerable height and distance above the waterway, the proposal will not negatively affect any undeveloped headland, rock platform, public open space, or the surf zone. Public access is not available from the site, and this arrangement will not change. The proposed development has been designed and evolved in a manner that seeks to avoid or at the very least minimise potential impacts. As above. Exclusion does not apply. Noted. | | 2.11 | (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority— (a) has considered whether the proposed development is likely to cause an adverse impact on the following— (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage, and (b) is satisfied that— (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. (2) This section does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. | The proposal does not have any impact with regard to public access to and along any foreshore, beach, headland etc. It is not considered likely that any Aboriginal cultural heritage, practices or places would be encountered or adversely affected given the site has been cleared and developed previously. The site is not mapped as containing a heritage item and (as established) will not detract from the adjoining heritage item to the east No. 255 Attunga Road (I4603 – house and boatshed). Given distance from the waterway, the development will not cause overshadowing of the foreshore or cause any adverse wind funnelling impacts. Through works that involve compatible built form alterations and additions there will be no adverse impacts on scenic quality on the foreshore. The proposal will provide a significantly improved visual presentation and contribution to the locality – enhancing the scenic quality of the foreshore through built form entirely consistent with adjoining foreshore development. The proposal is designed to avoid or minimise potential impacts with regard to the above considerations. The development reflects a suitable bulk and scale in the context of the surrounding coastal environment. The proposal presents a highly compliant scheme in response to the suite of relevant numerical controls. Exclusion does not apply. |

The Court is satisfied that the applicant’s Written Request seeking to justify the contravention of the development standard in cl 6.9 of the SSLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SSLEP.
The Proposed Development includes works to a maximum height of 8.33m and therefore would not exceed the maximum height of building development standard of 8.5m that applies to the Site pursuant to cl 4.3 of the SSLEP
The Site is mapped as ‘Class 5 Land’ and in relation to acid sulfate soils provisions in cl 6.1 of the SSLEP, cl 6.1(2) requires development consent for the carrying out of works on Class 5 land which is within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum however, the Proposed Development does not involve excavation greater than 5m below natural ground level.
Pursuant to cl 6.4 of the SSLEP, relating to stormwater management, I am satisfied that the development 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 includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and 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. I reach this state of satisfaction because the additional impervious surfaces created by the Proposed Development utilises the existing stormwater regime currently in place on the Site. Accordingly, the additional stormwater run-off to be generated by the Proposed Development from the roof will be appropriately drained to the existing stormwater system which will not cause any adverse impacts on adjoining properties, native bushland or receiving waters.
The Site is located within area mapped as terrestrial biodiversity. The Respondent has considered the matters listed in cl 6.5(3) of the SSLEP in relation to whether the Proposed Development will have adverse environmental impacts on the land and the Court is satisfied pursuant to cl 6.5(4) of the SSLEP that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impacts.
The Site is located within an area mapped as riparian land and water courses and pursuant to cl 6.7(3) of the SSLEP. The Respondent has considered several matters in relation as to whether the Proposed Development will have any adverse impacts on: water quality, aquatic species within the watercourse, the ecosystem of the water course and the future rehabilitation of the watercourse. The Court is prevented from granting development consent unless it is satisfied pursuant to cl 6.7(4) of the SSLEP that the Proposed Development has been designed and sited to avoid any significant adverse environmental impacts. In the present case the Court is be satisfied that the Proposed Development will not cause any adverse environmental impacts as the nature of development is alterations and additions to an existing dwelling house and the works contemplated by the Proposed Development are located a considerable distance away from riparian land and watercourses.
The Site is located within an area mapped as natural landforms and pursuant to cl 6.8(3) of the SSLEP requires the Court to consider several matters in relation to whether the Proposed Development will have any adverse impacts on the environmental and scenic qualities of natural landforms. The Court is prevented from granting development consent unless it is satisfied pursuant to cl 6.8(4) of the SSLEP that the Proposed Development has been designed and sited to avoid any significant adverse environmental impacts. In the present case the Court is satisfied that the Proposed Development will not cause any adverse environmental impacts as the alterations and additions to the existing dwelling house are compatible with surrounding built form, and are not excessive in terms of adding any excessive height or bulk to create any adverse visual or environmental impacts or interfere with the scenic qualities of the foreshore locality.
Clause 6.14 of the SSLEP requires a minimum landscaped area of 40% for the land as identified on the Landscape Area Map. The Proposed Development will result in a landscaped area of the subject site that exceeds the required 40%, with a provision of 379m2, 41.5%.
The Proposed Development is supported by an amended BASIX Certificate No A1779868_05 dated 3 November 2025 and the Applicant has provided to the court a letter dated 6 November 2025 from Bowerman Design which quantifies the embodied emissions of the Proposed Development pursuant to s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.
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 I have set out in this judgment.
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.