Jordan v Sutherland Shire Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 34AA
Environmental Planning and Assessment Regulation 2021 (NSW), s 37
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 2.10, 2.11
State Environmental Planning Policy (Sustainable Buildings) 2022
Sutherland Shire Local Environmental Plan 2015, cll 5.7, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9

Category: Principal judgment

Parties: Robert Richmond Jordan (First Applicant)
Craig Turner (Second Applicant)
Sutherland Shire Council (Respondent)

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

File Number(s): 2025/404581

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) being an appeal against the refusal of Development Application DA25/0468 seeking consent for the construction of a boat shed, skid ramp, jetty, ramp, pontoon and alteration of access stairs (Proposed Development) at 276-278 Attunga Road, Yowie Bay legally described as Lot 2 in DP 9780 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 24 March 2026. I have presided over the conciliation conference.

3. The Proposed Development has been amended by way of plans (Amended Plans) provided in response to the Statement of Facts and Contentions filed by the Respondent and in accordance with the agreements reached in the Town Planning Joint Expert Report prepared by Benjamin Black and Joseph Vescio filed 10 March 2026.

4. 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.

5. 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.

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

7. 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 relevant terms of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the Court.

8. The Site is zoned part C3 Environmental Management and the land the subject of the Proposed Development is within a W2 Recreational Waterways zone pursuant to the SSLEP. Water recreation structures are permissible with consent in Zone W2 Recreational Waterways. A water recreation structure is defined in SSLEP as:

… a structure used primarily for recreational purposes that has a direct structural connection between the shore and the waterway, and may include a pier, wharf, jetty or boat launching ramp.

9. A boatshed is permissible with consent in the C3 Environmental Management zone within the foreshore area. A boatshed is defined in SSLEP as:

… a building or other structure used for the storage and routine maintenance of a boat or boats and that is associated with a private dwelling or non-profit organisation, and includes any skid used in connection with the building or other structure.

10. Consent is sought to carry out development on the land below the mean high water mark (MHWM) pursuant to cl 5.7 of the SSLEP and for earthworks pursuant to cl 6.2 of the SSLEP.

11. The Proposed Development is largely below the MHWM. The Department of Planning, Housing and Infrastructure provided their owners consent on 25 March 2025. In respect of works on the Site, the First Applicant is the registered owner.

12. The parties agree that the Site is not heritage listed and not in a heritage conservation area, and accordingly, that the court can be satisfied that no further consideration needs to be given to issues of heritage pursuant to cl 5.10 of the SSLEP.

13. The Site is not located within an area marked on the flood maps in the SSLEP: cl 5.21, SSLEP.

14. The Site is located within a Class 1 and 5 Acid sulfate area. Although the location of the Proposed Development is mapped as Class 1 Acid Sulfate, the parties agree that the Court can be satisfied pursuant to cl 6.1(6) of the SSLEP, that the extent of works proposed will involve the disturbance of less than 1 tonne of soil and is unlikely to lower the watertable, and thus further consideration of cl 6.1 of the SSLEP is not required.

15. The Proposed Development does not incorporate works which might impact on stormwater management on the Site. The parties agree that the Court can be satisfied that the Proposed Development does not affect water permeable surfaces, does not affect on-site stormwater retention and does not affect water runoff to any waterway: cl 6.4, SSLEP.

16. The Site above the MHWM is mapped as terrestrial biodiversity land on the SSLEP maps.

17. Clause 6.5(3) and (4) of the SSLEP states:

6.5 Environmentally sensitive land—terrestrial biodiversity

…

(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider—

(a) whether the development is likely to have—

(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) any adverse impact on the habitat elements providing connectivity on the land, and

(b) 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 by adopting feasible alternatives—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.

18. No trees are located within or near the proposed development footprint and therefore no tree removal is required. The Statement of Environmental Effects filed with the Class 1 Application (SEE) states at p 17 that:

“There is no significant fauna and flora in the area of the proposed boatshed. Furthermore, the proposal includes a new landscaping regeneration area, which will enhance the site's vegetation and contribute positively to the local environment.”

19. The parties agree that the Court can be satisfied that there is adequate information to fulfil the consideration requirements under subcl (3) and to reach the level of satisfaction required under subcl (4).

20. The Site is not marked on the relevant maps for environmentally sensitive land – groundwater vulnerability pursuant to cl 6.6 of the SSLEP. However, it is mapped in the Riparian Lands and Watercourses Map pursuant to cl 6.7 of the SSLEP and to satisfy subcll (3) and (4), the Applicant relies on a marine habitat report prepared by H2O Consulting Group dated 28 September 2023 filed with the Class 1 Application. The original plans were also issued to the Department of Primary Industries which, on 2 February 2024 issued a letter not objecting to the Proposed Development. Accordingly, the parties agree that the Court can be satisfied that the matters for consideration in subcl (3) have been considered and those matters in subcl (4) of cl 6.5 have been satisfied.

21. The area the subject of the Proposed Development is mapped on the Natural Landforms Map pursuant to cl 6.8 of the SSLEP and to satisfy cl 6.8(4) the parties confirm that the Amended Plans clearly establish which rocks and natural rock features will be retained.

22. The Proposed Development satisfies the relevant matters that must be satisfied before development consent can be granted pursuant to cl 6.9(3) of the SSLEP regarding Limited Development on foreshore area, which states:

6.9 Limited development on foreshore area

…

(3) Development consent must not be granted under this clause, unless the consent authority is satisfied that—

(a) the appearance of the development, from both the foreshore area and the adjacent waterway, will be compatible with the surrounding area, and

…

(c) the natural qualities of the foreshore area are retained or restored as far as practicable through the retention or reinstatement of natural levels and endemic vegetation, and

…

(g) for development for 1 of the following purposes, the development and resulting building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore—

…

(iii) the erection of a new building, …

23. The parties agree that the Proposed Development as amended by the Amended Plans has ensured that the structures proposed are compatible with the surrounding area and that the development will not cause congestion or generate conflict between users of the waterway.

24. For the purposes of satisfying the relevant provisions in Ch 2 of the Resilience and Hazards SEPP, the Site is mapped as:

25. Coastal Environment Area.

26. Coastal Use Area.

27. As the Site is identified as being land within the “coastal environment area”, the parties agree that the Court can be satisfied that the development as amended by the Amended Plans will avoid all of the impact listed in s 2.10(1) of the Resilience and Hazards SEPP, 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.

28. The Site is identified as being land within the “coastal use area” under s 2.11 of the Resilience and Hazards SEPP. In respect of s 2.11(2), the parties agree that the Court can be satisfied that the development as amended by the Amended Plans will avoid all of the impacts listed in s 2.11(1).

29. The Proposed Development does not require the provision of any certification pursuant to the State Environmental Planning Policy (Sustainable Buildings) 2022 because the cost of works is less than $50,000.00.

30. 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.

31. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

30. The Court notes that:

31. The Respondent, Sutherland Shire Council, as the relevant consent authority, has agreed, under section 37(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No DA25/0468 to rely on the documents listed below:

(a) Approved plans

| Plan number | Revision number | Plan title | Drawn by | Date of plans | | DWG 1 | 3 | Site Plan | Harbour Planning Pty Ltd | 22/01/2026 | | DWG 2 | 3 | Plans Above and Below | Harbour Planning Pty Ltd | 22/01/2026 | | DWG 3 | 6 | Elevations Plan | Harbour Planning Pty Ltd | 3/03/2026 | | DWG 4 | 1 | Elevations | Harbour Planning Pty Ltd | 3/03/2026 | | DWG 5 | 5 | Boatshed Details | Harbour Planning Pty Ltd | 22/01/2026 | | DWG 5A | 2 | New Section Plan | Harbour Planning Pty Ltd | 3/03/2026 | | DWG 1 | - | Boatshed Excavation Plan | Harbour Planning Pty Ltd | Mar 2026 | | DWG 2 | - | Boatshed Excavation Plan | Harbour Planning Pty Ltd | Mar 2026 | | DWG 3 | - | Boatshed Excavation Plan | Harbour Planning Pty Ltd | Mar 2026 | | DWG 4 | | Sediment and Erosion Control Plan | Harbour Planning Pty Ltd | Mar 2026 | | DWG 1 | | Supporting Plan – Large Scaled Site Plan | Harbour Planning Pty Ltd | Mar 2026 | | DWG 2 | | Supporting Plan – Elevation | Harbour Planning Pty Ltd | Mar 2026 | | DWG 3 | | Supporting Plan – Overlay | Harbour Planning Pty Ltd | Mar 2026 | | DWG 4 | | Supporting Plan – Sediment and erosion Control Plan | Harbour Planning Pty Ltd | Mar 2026 | | Sheet 1/3 | | Structural Notes | CPM Engineering | 10/12/2025 | | Sheet 2/3 | | Structural Plan | CPM Engineering | 10/12/2025 | | Sheet 3/3 | | Structural Details | CPM Engineering | 10/12/2025 |

(b) Approved Documents

| Document title | Version number | Prepared by | Date of document | | Engineers Structural / Geotechnical Stability Report (Minor Scope) | 25106 | CPM Engineering | 16 December 2025 | | Construction Methodology & Management Plan | - | Harbour Planning Pty Ltd | 16 January 2026 |

Orders:

31. The Court orders:

32. The appeal is upheld.

33. Development Application DA25/0468 for the part demolition of an existing staircase, earthworks, construction of a new staircase, boat shed, skid ramp, jetty, ramp and pontoon and alteration of access stairs at Lot 2 in Deposited Plan 9780, also known as 276-278 Attunga Road, Yowie Bay, NSW 2228 is determined by the grant of consent subject to conditions contained in Annexure ‘A’.

E Espinosa

Commissioner of the Court

Annexure A (518 KB, pdf)

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