Kerstin Thompson Architects Pty Ltd v Sutherland Shire Council

State Environmental Planning Polices

1. The following State Environmental Planning Polices apply to the site.

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

1. Clause 7 of SEPP 55 states that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated.
2. The parties agree and I accept that: 1. the site has been continually used for residential purposes since the original subdivision; 2. it is considered highly unlikely that the site is contaminated; and 3. no further assessment is required.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX)

1. The BASIX Certificate prepared by Atelier Ten Australia Pty Ltd, issued on November 2021 confirms that the proposed development will meet the NSW government's guidelines for sustainability under the SEPP BASIX.
2. Therefore, I accept that the development satisfies Schedule 1 of the BASIX commitments for residential flat buildings.

State Environmental Planning Policy (Coastal Management) 2018

1. The State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) provides development standards for land that is within a coastal zone.
2. Under the Coastal Management SEPP, the site is mapped as a coastal environment area and a coastal use area.
3. Clause 13(1) of the Coastal Management SEPP states that development consent must not be granted 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: 1. The integrity and resilience of the biophysical hydrological (surface and groundwater) and ecological environment. The parties agree and I am satisfied on the evidence that: 1. The proposed building will not encroach on the Foreshore Building Line and will not directly impact the waterway. 2. A Sediment Control Plan submitted with the development application proposes control devices to adequately manage runoff during the construction phase. 3. Concept stormwater plans submitted with this application comply with Council requirements and Australian Standards. 4. Geotechnical information has been provided to establish the acceptability of the proposed multi basement excavation. 5. The development, when complete, will have no adverse impacts on the integrity and resilience of the biophysical, hydrological or ecological environment. The water quality will be maintained through management of stormwater on the site as stormwater from the roof will be collected and reused on site or connected to Council's stormwater. 1. Coastal environmental values and natural coastal processes. The parties agree and I am satisfied on the evidence that: 1. The development takes place on land that has previously been disturbed and which is located over 8m from the foreshore. It will have no adverse impact on coastal environmental values or natural coastal processes. 1. 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. The parties agree and I am satisfied on the evidence that: 1. The stormwater plan submitted with the application identifies measures to ensure run-off to the waterway will have no adverse impacts. 2. Sewerage and other wastewater will be piped through the existing sewer network to be treated in the typical manner. 3. The site is not on any of the coastal lakes identified in Schedule 1. 1. Marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms. The parties agree and I am satisfied on the evidence that: 1. Selected vegetation on the site will be removed and supplemented with improved planting and more appropriate native species, as per the amended landscape plan. 2. The significant Norfolk Island Pine trees will be preserved and protected. 3. The development will have no impact on marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms. 1. 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. The parties agree and I am satisfied on the evidence that: 1. The existing pedestrian walkway along the eastern boundary of the site and the walkway along The Esplanade will not be impacted as a result of the development. 2. The laneway access along the eastern boundary will be preserved and views to the water from it partially preserved. 1. Aboriginal cultural heritage, practices and places. The parties agree and I am satisfied on the evidence that: 1. The site is already disturbed by the existing development and use, and therefore it is unlikely that any Aboriginal cultural heritage items or places will be impacted as a result of the proposed development. 1. The use of the surf zone. The parties agree and I am satisfied on the evidence that: 1. the development will not impact on Bate Bay or any other surf zone within the locality.
4. Clause 13(2) of the Coastal Management SEPP states that development consent must not be granted 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 subclause (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.
5. The parties agree and I accept on the evidence that: 1. The development is designed, sited and will be managed through relevant conditions of consent to minimise any adverse impact referred to in cl 13(1) of the Coastal Management SEPP. 2. The development has been designed to respond to the constraints of the site and uses materials and finishes that reflect the coastal region. 3. The development adopts a setback of over 8m from The Esplanade frontage, in accordance with the Foreshore Building Line established in the SSLEP. 4. The proposed development is unlikely to have any impact on the coastal environment.
6. Clause 14(1) of the Coastal Management SEPP states that development consent must not be granted to development on land that is within the coastal use area unless the consent authority has: 1. considered whether the proposed development is likely to cause an adverse impact on the following: 1. existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability. The parties agree: 1. The development will have an acceptable impact on the existing pedestrian walkway along the eastern boundary of the site or the walkway along The Esplanade and not impede safe public access. 1. overshadowing, wind funnelling and the loss of views from public places to foreshores. The parties agree: 1. There will be an acceptable impact on sunlight or wind due to the orientation of the site and design of the proposed dwellings including side setbacks. 2. Any potential for view loss is limited to the dwellings located toward the south of the site. Any view loss associated with the proposal could be reasonably anticipated from development designed in accordance with the existing controls. 3. View impacts have been mitigated through appropriate siting and design of the proposed building. 4. Limited detrimental view loss of the foreshore is expected from public places surrounding the site. 1. the visual amenity and scenic qualities of the coast, including coastal headlands. The parties agree and I am satisfied on the evidence that: 1. The development will replace older buildings with limited site landscaping, with a contemporary, high quality dual occupancy development which includes acceptable landscaping throughout the site, providing an overall positive contribution to the visual amenity of the area having regard to the applicable development controls. 2. The proposed development is setback 8m from The Esplanade frontage and includes high quality materials and finishes to reflect the coastal environment and not unreasonably impact on the scenic qualities of the coast. 1. Aboriginal cultural heritage, practices, and places. The parties agree and I am satisfied on the evidence that: 1. There are no items or places of Aboriginal heritage located in the site. 1. cultural and built environment heritage. The parties agree and I am satisfied that: 1. The Esplanade along the northern boundary of the site is heritage listed under the SSLEP. The heritage item (1053) is described as the "walking path on Eastern Foreshore" and has scenic qualities and evidences the provision of coastal defence installations by government agencies in the Sutherland Shire, as well as development of leisure-based activities and community values toward natural features. 2. The development has been designed to take into account the surrounding natural features of the area and has a sympathetic relationship with the heritage listed walkway by providing a generous setback to The Esplanade with appropriate and high quality landscaping interfacing with the walking path which is currently being reconstructed and modernised by the Council. 3. The development will not unreasonably adversely impact on the adjoining heritage listed item and is consistent with the zoning of the land. 1. And I am also satisfied that: 1. the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (1), or 2. if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or 3. if that impact cannot be minimised - the development will be managed to mitigate that impact. The parties agree and I am satisfied that: 1. The development is designed, sited and will be managed via conditions of consent to where possible avoid any adverse impact identified in cl 14(1)(a) of the Coastal Management SEPP. 2. Various aspects of the development have been designed to respond to the constraints of the site and uses materials and finishes that reflect the coastal region. 3. The development adopts a setback of 8m from The Esplanade frontage in accordance with the Foreshore Building Line under the SSLEP. 4. Appropriate landscaping has been adopted within the setback to The Esplanade to facilitate softening of the interface with the site, compatible with the appearance of the foreshore and sympathetic to the heritage significance of the walkway. 1. has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. The parties agree and I am satisfied that: 1. The development complies with all relevant SSLEP provisions and provides an acceptable response to Sutherland Shire Development Control Plan 2015. 2. The overall development is considered to be acceptable within the surrounding build character, in reference to bulk, scale and general size.

Sutherland Shire Local Environmental Plan 2015 (SSLEP)

1. The SSLEP applies to the site.
2. The parties agree, as per [7(2)] that the site is zoned R4 High Density Residential and dual occupancies are permissible with consent.
3. Clause 2.7 of the SSLEP states that demolition of a building or work may be carried out only with development consent. The proposal seeks consent for the demolition of the existing structures on the site.
4. Clause 4.3(2) of the SSLEP required that the height of the building is not to exceed the maximum height shown on the Height of Buildings Map which is 16 metres. The parties agree that the building does not exceed the maximum height of 16 metres (chimney height is 15,940mm).
5. Clause 4.4 of the SSLEP states that the floor to space ratio (FSR) of a building is not to exceed the maximum FSR shown on the FSR Map which is 1.5:1. The parties agree that the proposed FSR for the development is below 1.5:1 (1.20:1).
6. Clause 5.10(5) of the SSLEP states that a consent authority may, before granting consent to any development on land on which a heritage item is located, is within a heritage conservation area or is within the vicinity of a heritage item, require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.
7. The Esplanade along the northern boundary of the site is heritage listed under the SSLEP. The heritage item (1053) is described as the "walking path on Eastern Foreshore". The parties agree the proposed development has been designed to appropriately respond to the surrounding natural features of the area and the heritage listed walkway by providing an increased setback to The Esplanade with appropriate and high-quality landscaping. The proposal is not anticipated to unreasonably impact on the adjoining heritage item as the development is consistent with the zoning of the land.
8. Clause 6.1 of the SSLEP states that development consent is required for works within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m AHD and by which the water table is likely to be lowered below 1m AHD on adjacent Class 1, 2, 3 or 4 land. The parties agree the site is classified as Class 5 acid sulfate soil and is not located within 500m of Class 1, 2, 3 or 4 land.
9. Clause 6.2 of the SSLEP requires a consent authority to consider various matters relating to earthworks where development consent is sought. A geotechnical report provided on 22 July 2021 by JK Geotechnics is provided with the development application. The parties agree the proposed works should not have any significant adverse impact and that standard conditions of consent to manage and mitigate any impacts associated with earthworks would be appropriate.
10. Clause 6.4 of the SSLEP states that development consent must not be granted unless the consent authority is satisfied that the development: 1. 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, 2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, 3. the proposed upgrading of the existing public drainage system connecting Mentone Avenue to The Esplanade by the applicant on behalf of Council along with the proposed public covenant under a deed of agreement for its maintenance will improve the existing public drainage infrastructure, and 4. 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.
11. Detailed stormwater management plans and report prepared by Van Der Meer Consulting, and a report also by Martens & Associates Pty Ltd, has been provided to support the development application and to address these requirements. The parties agree and I am satisfied that: 1. Water permeable surfaces exist with sufficient site area. 2. The proposed development will avoid any significant adverse impacts of stormwater runoff on adjoining properties and receiving waters. There is no native bushland surrounding the site.
12. Clause 6.9(2) of the SSLEP states that development consent must not be granted for development on the foreshore area except in limited circumstances including: 1. the alteration, extension or rebuilding of an existing dwelling wholly or partly on the foreshore area if the footprint of the extension or alteration will not extend any further forward of the foreshore building line than the footprint of the existing dwelling, 2. the erection of a new dwelling on the foreshore area if there is no reasonable alternative that would allow a new dwelling to be located outside of the foreshore area, 3. development for the following purposes that does not significantly alter the shape, natural form or drainage of the foreshore area - 1. landscaped areas, 2. swimming pools (that are no higher than 300 mm above ground level), 1. the erection of a building on the foreshore area (other than a building referred to in paragraph (1), (2) or (3)), if the levels, depth or other exceptional features of the site make it appropriate to do so.
13. The parties agree that the proposed dwelling is setback 8m from the Foreshore Building Line, with only landscaping, deck work for services (e.g. sewerage pipe), and fences will occur within the foreshore building line.
14. Clause 6.9(3) of the SSLEP states that development consent must not be granted 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 (b) the development will not cause environmental harm such as - (i) pollution or siltation of the waterway, or (ii) an adverse effect on a surrounding use, marine habitat, wetland areas or fauna and flora habitats, or (iii) an adverse effect on drainage patterns, 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 (d) the development will not cause congestion or generate conflict between people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore area and to the waterway will not be compromised, and (f) any heritage significance of the foreshore area on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the alteration, extension or rebuilding of an existing building (or the erection of a new building) wholly or partly in the foreshore area, the alteration, rebuilding or new building will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) in the case of the erection of a new dwelling, the dwelling will not be erected further forward of the foreshore building line than any existing dwelling on the land, and (i) it has considered sea level rise or change of flooding patterns as a result of climate change.
15. The parties agree and I am satisfied that: 1. The proposal has been designed to achieve acceptable compatibility with the surrounding natural features of the locality and the coastal character of the area through the architectural design, articulation, glazing and high-quality materials and finishes. 2. The proposed development will not cause significant environmental harm. 3. The natural qualities of the foreshore area will be retained as far as practicable given the design objectives of the proposal. 4. The development will not cause congestion or generate conflict between people using open space areas or the waterway. 5. Public access to the foreshore area and the waterway will not be compromised by the development. 6. The foreshore area runs along the north-eastern boundary of the land adjacent to The Esplanade frontage. The proposed building is setback behind the foreshore building line. 7. Appropriate landscaping has been proposed within the setback to The Esplanade, compatible with the appearance of the foreshore and sympathetic to the heritage significance of the walkway. 8. The proposed development will not have an unacceptable adverse impact on the amenity or aesthetic appearance of the foreshore. 9. Flooding patterns have been considered by the overland flood study by Van Der Meer.
16. Clause 6.9(4) of the SSLEP states that: In deciding whether to grant development consent for development on the foreshore area, the consent authority must consider whether and to what extent the development would facilitate the following - (a) continuous public access to and along the foreshore area through or adjacent to the proposed development, (b) public access to link with existing or proposed open space, (c) public access to be secured by appropriate covenants, agreements or other instruments registered on the title to land, (d) public access to be located above the mean high water mark, (e) reinforcement of the foreshore character and respect for existing environmental conditions, (f) management of any rise in sea level or change of flooding patterns as a result of climate change.
17. The parties agree and I am satisfied that the proposed development effectively facilitates: 1. Continuous public access along the foreshore area as it does not impede the use of The Esplanade located adjacent to the site or the existing public access to The Esplanade that is available adjacent to the south eastern boundary of the site. 2. Maintains the foreshore character and respect for existing environmental conditions because there is appropriate landscaping proposed within the setback to The Esplanade, compatible with the appearance of the foreshore. 3. Allows for the preservation of some views to the coast, beach and ocean from the walkway along the eastern boundary through the use of an open form diagonal timber boundary fencing at the northeast corner area of the site. 4. Flood patterns have been considered by the overland flood study by Van Der Meer.
18. Clause 6.14 of the SSLEP states that the minimum percentage of the site area on land in certain zones is to consist of landscaped areas in the percentage shown on the Landscape Area Map. The percentage shown on the Landscape Area Map is 30%. The parties agree that the proposed landscape area for the development is above 30% (388.1m2 or 32.6%) of the site area.
19. Clause 6.16(1) of the SSLEP states that: In deciding whether to grant development consent for any development, the consent authority must consider the following: (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to - (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.
20. The parties agree and I am satisfied that: 1. The proposed development will achieve the high-quality design and development outcomes for the urban environment of the Sutherland Shire. 2. Proposed development will integrate with the existing character of the foreshore area, neighbourhood and streetscape within Cronulla and will contribute to the future character of the locality. 3. Adequate recognition has been given to the public domain through the design of the development which incorporates significant high-quality landscaping adjacent to the foreshore area and preservation of some public views from the eastern public walkway. 4. The natural environment will be preserved by the retention of two Norfolk Island Pine Trees on the site, and additional native planting incorporated within the landscaping scheme. 5. The visual presentation of the development will have an acceptable impact on the natural landform of the site (despite excavation). 6. The proposed development will not unreasonably impact existing views from public areas along the foreshore or the access way to the foreshore, noting the open form fencing in the northeast corner at the site and maintenance of low landscaping in this corner. 7. Passive surveillance over public areas will be provided by the building design and fence heights.
21. Clause 6.17 of the SSLEP requires the consent authority to consider: (a) the extent to which recognition has been given to the design of the development to the needs of the diverse and changing population of the Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscape setting, (g) any opportunities for the provision of affordable housing.
22. I have considered those matters and the submissions received following the notification of the application to adjoining and nearby owners and occupiers between 6 January 2021 and 5 February 2021.
23. 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 now make the following orders.
24. The Court notes: 1. That Sutherland Shire Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA20/1117. 2. That Sutherland Shire Council has uploaded the amended development application on the NSW planning portal on 25 November 2021. 3. That the applicant has filed the amended development application with the Court on 25 November 2021.

Orders

1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA20/1117, as amended for the demolition of all existing structures, associated tree removal, construction of a three-storey dual occupancy with a roof top terrace, a swimming pool for each dwelling, two (2) basement levels, associated landscaping and civil works including the drainage works carried out by the applicant on behalf of Council upgrading the existing pipes system draining upstream stormwater from Mentone Avenue to The Esplanade, and lot consolidation at 9-10 The Esplanade, Cronulla (Lot 1 DP 952686 and Lot 1 DP 104946) is approved subject to the conditions in Annexure A. ………………………. S Dixon Senior Commissioner of the Court Annexure A (366677, pdf)

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