Kavaluro Pty Ltd v Sutherland Shire Council

Category: Principal judgment

Parties: Kavaluro Pty Ltd (First Applicant)
Sandor Duzs (Second Applicant)
Sutherland Shire Council (Respondent)

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

File Number(s): 2024/458973

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Development Application No. 24/0595 for the demolition of existing structures and the change of use of existing building to office premises, construction of two industrial/commercial buildings, carparking and landscaping, and consolidation of existing lots (the proposal), at 5 Meta Street, Caringbah and 25 Wurrook Circuit, Caringbah (the site), by Sutherland Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 19 May 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. 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Plan number | Revision number | Plan title | Drawn by | Date of plans | | DA101 | 14 | Site Plan | msk architects | 27/05/2025 | | DA200 | 14 | Building 1 Ground Floor Mod.Plans | msk architects | 27/05/2025 | | DA201 | 14 | Building 1 First Floor Mod.Plans | msk architects | 27/05/2025 | | DA202 | 14 | Ground Floor Plan Building 3 | msk architects | 27/05/2025 | | DA203 | 14 | First Floor Plan Building 3 | msk architects | 27/05/2025 | | DA204 | 14 | Second Floor Plan Building 3 | msk architects | 27/05/2025 | | DA205 | 14 | Ground Floor Plan Building 2 | msk architects | 27/05/2025 | | DA206 | 14 | First Floor Plan Building 2 | msk architects | 27/05/2025 | | DA301 | 14 | Elevation Building 4 East, West | msk architects | 27/05/2025 | | DA302 | 14 | Elevation Unit 2-3 West, East | msk architects | 27/05/2025 | | DA303 | 14 | Elevation Unit 2-3 West, North | msk architects | 27/05/2025 | | DA401 | 14 | Section AA CC | msk architects | 27/05/2025 | | DA402 | 14 | Section BB DD | msk architects | 27/05/2025 | | DA-C06.01 | G | Stormwater Management Plan | Northrop | 11/06/2025 | | DA-C10.01 | E | Civil Details | Northrop | 11/06/2025 |

| Document title | Version number | Prepared by | Date of documents | | Traffic and Parking Impact Assessment report | 250037.01FB / Issue B | McLaren | 1 May 2025 | | Civil Design Letter | NL240726 / Rev F | Northrop | 11 June 2025 | | Detailed Site Investigation | E24299.E02_Rev0 | eiaustralia | 15 May 2025 | | Acid Sulfate Soil Assessment | E24299.E14.002_Rev0 | eiaustralia | 15 May 2025 | | Soil Vapour and Ground Gas Investigation | E24299.E20.002_Rev0 | eiaustralia | 29 May 2025 | | Arboricultural Impact Assessment Report | - | Jacksons Nature Works | 31 March 2025 | | Erosion & Sediment Control Plan | DA-C02.01 / Rev C | Northrop | 23 May 2025 | | Erosion & Sediment Control Plan | DA-C02.11 / Rev C | Northrop | 23 May 2025 |

Pre-conditions to the grant of consent

5. I accept the Council’s assessment that the site is suitable for the development, on the basis of the following documents which conclude that the site can be made suitable for the development subject to conditions imposed in the reports and adopted in the conditions of consent at Annexure A (conditions 5 and 31), and that the matters under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been addressed:

6. Detailed Site Investigation prepared by EI Australia dated 15 May 2025, and

7. Soil Vapour and Ground Gas Investigation prepared by EI Australia dated 29 May 2025.

8. I accept the Council’s assessment that the signage proposed, supported by the Statement of Environmental Effects prepared by Planning Ingenuity dated 18 October 2024, is acceptable, pursuant to s 3.6 of State Environmental Planning Policy (Industry and Employment) 2021

9. The site is zoned E4 General Industrial pursuant to Sutherland Shire Local Environmental Plan 2015 (LEP 2015). The objectives of the zone, to which regard must be had, are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To enhance the visual appearance of the area by ensuring new development achieves high architectural and landscape standards.

• To minimise the impact of development within the zone on areas of environmental significance.

8. Clause 2.5 and cl 34 of Sch 1 of LEP 2015, permit the use of the site for the purpose of offices.

9. Clause 5.21 of LEP 2015 Flooding applies to the proposal as the site is affected to a minor extent of the 1% Annual Exceedance Probability. This flooding is largely concentrated to the southern extent of the site, adjoining Meta Street. In the amended proposal, the Finished Floor Level for Building No 2 has been raised to 3.75 Australian Height Datum and the engineering plans propose storage of stormwater and flood waters on the site. I accept the Council’s submission that the matters under cl 5.21(2) are satisfied.

10. I accept the Council’s submission, on the basis of the amended civil stormwater plans prepared by Northrop, that the proposal does not affect water permeable surfaces, does not affect on site stormwater retention and does not affect water runoff to any waterway, and that the matters under cl 6.4(3) of LEP 2015 have been considered in the assessment and are satisfied.

Conclusion

11. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 10 July 2025 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

12. The orders of the Court are:

13. The Applicants are to pay the Respondent’s costs thrown away as a result of the amendment of the Development Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the amount of $5,000 within 14 days from the date of this order.

14. The appeal is upheld.

15. Development Application No. 24/0595 for the demolition of existing structures and the change of use of existing building to office premises, construction of two industrial/commercial buildings, carparking and landscaping and consolidation of existing lots, at 5 Meta Street, Caringbah NSW 2229 being Lot 100 in Deposited Plan 1303021, and 25 Wurrook Circuit, Caringbah NSW 2229 being Lot 15 in Deposited Plan 1193614, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

S O’Neill

Commissioner of the Court

Annexure A (448 KB, pdf)

**********