Hue Binh Trieu Ming Lee Pty Ltd v Sutherland Shire Council

Texts Cited: Sutherland Shire Development Control Plan 2015

Category: Principal judgment

Parties: Hue Binh Trieu Ming Lee Pty Ltd (1st Applicant)
Harbour Planning Pty Ltd (2nd Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
J McKelvey (Applicant)
J Amy (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/127393

Publication restriction: Nil

JUDGMENT

1. This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal by Sutherland Shire Council of DA24/0684 (DA). The DA as amended seeks consent for the construction of a skid ramp, re-orientation of an existing pontoon, and construction of a new ramp on crown land (Proposed Development) adjacent to 72 Ellesmere Road, Gymea Bay NSW 2227, legally know as Lot 301 in Deposited Plan 1174635 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, at which I presided on 9 September 2025.

3. During the conference, Sutherland Shire Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicants amending Development Application No. DA24/0684 to include the following documents (Amended Development Application):

| NO | DOCUMENT | DATE | | 1 | Plans by Harbour Planning Pty Ltd all Revision 1:- • Drawing 01 Site Plan • Drawing 02 Elevation Plan • Drawing 03 Specification Plan • Drawing 04 Material Schedule | 9 September 2025 | | 2 | Construction Methodology Statement & Plan prepared by Harbour Planning Pty Ltd | 7 August 2025 | | 3 | Statement addressing Acid Sulphate Soils prepared by Harbour Planning Pty Ltd | 19 March 2025 | | 4 | Photo montages and statement on Methodology prepared by David Muratroyd | 5 September 2025 |

4. The Court notes that this list of amended plans and documents is included in the final consent conditions in Annexure A.

5. On the 10 September 2025, the parties submitted an agreement as to the terms of a decision that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, subject to conditions in Annexure A.

6. 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.

7. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The signed agreement is supported by a Jurisdictional Statement from the parties and was explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [36].

Jurisdictional Prerequisites

Owners Consent

8. The Proposed Development is predominately below mean high-water mark. The Department of Planning Housing and Infrastructure provided its owner’s consent. In respect of works on the Site, the owners are the applicants.

Public Notification

9. The Development Application was notified 6 December 2024 for a period of 14 days with one submission made. The objector spoke at the commencement of the conciliation conference and raised issues pertaining to encroachment of the existing ramp and pontoon, various non-compliance with other consents, adverse visibility and safe manoeuvrability impacts, excessive waterfront structures and visual impact.

State Environmental Planning Policy (Resilience and Hazards) 2021

10. The part of the site where the proposed development is to occur is mapped within the Coastal Environment Area and Coastal Use Area of the State Environmental Planning Policy (Resilience and Hazards) 2021 (R&H SEPP).

11. Pursuant to s 2.10 (1) of the R&H SEPP, development consent must not be granted unless the consent authority has considered that the proposed development is likely to cause an adverse impact on the matters listed in s 2.10(1)(a)-(g). The parties agree, and the Court accepts that the Proposed Development as amended by the Amended Plans that the site is not within the Foreshores and Waterways Area under the Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and will not cause an adverse impact on those items raised in s 2.10(1).

12. Pursuant to s 2.10(2), the parties agree, and the Court is satisfied that the development as amended by the Amended Plans will minimise the impact listed in 2.10(1) including ecological, biophysical and hydrological impacts, impacts on natural coastal processes, the ecology of marine vegetation and native vegetation, safe access to the waterway and aboriginal cultural heritage by the design, siting and management of the proposed works.

13. Pursuant to s 2.11 of the R&H SEPP, development consent must not be granted unless the consent authority has considered that the proposed development is likely to cause an adverse impact on the matters listed in s 2.11(1)(a)(i)-(v). The parties agree, and I accept that the Proposed Development as amended by the Amended Plans will not cause an adverse impact on those items raised in s 2.11(1).

14. Pursuant to s 2.11(2) of the R&H SEPP, the parties agree, and the Court is satisfied that the development as amended by the Amended Plans will minimise the impact listed in s 2.11(1) by the design, siting and management of the proposed works.

Fisheries Management Act 1994

15. A Development Application requiring an approval under s 201 of the Fisheries Management Act 1994 (NSW) (FM Act) is classified as integrated development pursuant to s 4.46 of the EPA Act. Condition 9 of the Conditions of Consent in Annexure A requires the Applicant to obtain this prior to issuance of a construction certificate.

Sutherland Shire Council Local Environmental Plan 2015 (SSLEP)

16. Sutherland Shire Council Local Environmental Plan 2015 (SSLEP) is applicable to the Site. The Site is within the W1 Natural Waterways zone pursuant to SSLEP. The Proposed Development is characterised as a “water recreation structure” and is a permissible land use with development consent within the W1 Natural Waterways zone.

17. Pursuant to cl 2.3(2) of the SSLEP, the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The Court notes that the Marine Estate Man**agement Act 2014 (NSW) is not applicable to this Site. The parties agree, and the Court accepts that the Proposed Development meets the objectives and permissible uses of the W1 zone, satisfying cl 2.3(2) of the SSLEP.

18. Pursuant to cl 5.7 of the SSLEP development consent and environmental assessment is required to be undertaken for development carried out on land covered by tidal waters. The parties agree, and the Court accepts that this has been included in the Statement of Environmental Effects prepared by Harbour Planning Waterfront Consultancy (November 2023).

19. Pursuant to cl 5.10, the parties state that the Site is not heritage listed nor is it in a heritage conservation area.

20. Pursuant to cl 5.21, The parties agree that the land is not located within an area marked on the flood maps in the SSLEP and this clause does not apply to the land.

21. Pursuant to cl 6.1, development consent is required for the carrying out of works shown on the Acid Sulfate Soils Map. The Site is located within a Class 1 and 5 area. The location of the Proposed Development is mapped as having Class 1 Acid Sulfate Soils, which would typically require matters within cl 6.1 to be considered.

22. However, cl 6.1(6) of the SSLEP states:

(6) Despite subclause (2), development consent is not required under this clause to carry out any works if—

(a) the works involve the disturbance of less than 1 tonne of soil, and

(b) the works are not likely to lower the water table.

23. The parties agree, and the Court accepts that the amount of soil which will be disturbed by the Proposed Development is minimal and expected to be less than 1 tonne and that the water table will not be affected.

24. Pursuant to cl 6.2 earthworks, as stated above the amount of material to be disturbed is less than 1 tonne. The parties agree, and the Court accepts that no further consideration needs to be given to cl 6.2 of the SSLEP.

25. Pursuant to cl 6.4, development consent must not be granted to development on land to which this Plan applies unless the consent authority is satisfied that the development address matters (3)(a)-(c). The Proposed Development does not incorporate works which might impact on stormwater management on the Site. The parties agree, and the Court is satisfied that the Proposed Development does not affect water permeable surfaces, does not affect on-site stormwater retention and does not adversely affect water runoff to any waterway.

26. Pursuant to cl 6.5 – terrestrial biodiversity, the land which is the site for the subject works is not mapped as terrestrial biodiversity land on the SSLEP maps and does not apply.

27. Pursuant to cl 6.6 - Environmentally sensitive land—groundwater vulnerability, the Site is not marked on the on the SSLEP maps and does not apply.

28. Pursuant to cl 6.7 - Environmentally sensitive land—riparian land and watercourses, the Site is mapped on the riparian land and watercourses map pursuant to SSLEP. Pursuant to cl 6.7(3), the consent authority is required to consider matters (a) to (c) and be satisfied of those matters outlined in cl 6.7(4)(a) to (c). The parties agree and the Court is satisfied that:

29. the Proposed Development will cause no demonstrable impacts on water flows within the waterway;

30. a maritime habitat report has been prepared to consider impacts on ecosystems;

31. a construction methodology has been prepared and forms part of the DA dealing with issues of construction and structure, and to manage stability of the waterway;

32. the marine habitat report has considered fish life and their movements;

33. the extent of earth disturbance has been considered and agreed as discussed above;

34. the development does not require water extraction;

35. the management of matters arising under the clause are addressed in the agreed proposed conditions of consent.

36. Pursuant to cl 6.8 - Environmentally sensitive land—environmental and scenic qualities of natural landforms, the Site is not marked on the on the SSLEP maps and does not apply

37. Pursuant to cl 6.9 - Limited development on foreshore area, the area the subject of the Proposed Development is below the Mean High-Water Mark (MHWM) and it falls outside the foreshore area as defined by SSLEP, therefore this clause does not apply.

38. Pursuant to cl 6.16 – Urban design, the parties agree, and the Court accepts that the matters in Cl 6.16(1)(a)-(g) have been considered. The Amended Documents have considered finishes and reuse of materials as part of the design.

Sutherland Shire Development Control Plan 2015

32. Whilst not jurisdiction requirements, the parties agree and the Court accepts that the Amended Development Application have been prepared having regard to the provisions of the SSDCP.

Conclusion

33. Based on Joint Expert Report, Amended Plans, documents and Conditions of Consent, the parties agree, and the Court is satisfied that the Proposed Development can be approved taking into consideration the matters in s 4.15(1) of the EPA Act.

34. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

35. I have considered the jurisdictional prerequisites, and I am satisfied based on the documents before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

36. 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.

Orders

37. The Court orders that:

38. The appeal is upheld.

39. Development Application DA24/0684 for the construction of a skid ramp, re-orientation of an existing pontoon, and construction of a new ramp on crown land adjacent to 72 Ellesmere Road, Gymea Bay NSW 2227 being Lot 301 in Deposited Plan 1174635 is determined by the grant of consent subject to conditions contained in Annexure A.

L Coetzee

Acting Commissioner of the Court

Annexure A (291 KB, pdf)

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