King v Sutherland Shire Council

Texts Cited: Sutherland Development Control Plan 2015

Category: Principal judgment

Parties: David King (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
F Berglund (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/363135

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Modification Application No. MA24/0116 by the Sutherland Shire Council to modify Development Consent DA 19/0616 to change the design of the northern side level 2 balcony to non-trafficable and delete condition 2(A)(ii) requiring privacy screens at 23 Pacific Crescent, Maianbar (legally known as Lot 1 DP 1296971) (the site).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(1A) of the EPA Act. The final orders in this appeal, outlined in par [33] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

History of the Development Consent

3. The parties advise that development application DA 19/0616 was approved by Council on 24 February 2020, and that the Development Consent has since been modified as follows:

4. Modification Application (MA20/0308) was approved 15 January 2021 for changes to overall building footprint resulting in increases to the northern side and eastern setbacks parking and internal design, increase in overall building height and changes to outdoor/deck areas;

5. Modification Application (MA21/0377) was approved 3 March 2022 for changes to external and internal design, increased garage and balconies areas, new stairs, revised landscaping areas, change to drainage void and basement RL; and

6. Modification Application (MA22/0301) was approved on 8 August 2023 for the replacement of stairs from the garage to entry.

The Modification Application

4. On 29 May 2024, the Applicant (who is the owner of the land) lodged the Modification Application (No. MA24/0116), which proposed the following:

5. Deletion of Condition 2(A)(ii) requiring a 1.6m high privacy screens to be installed on both sides of the rear balcony on Level 2 and replacing the trafficable portion with pebbles and pot plants.

6. On 13 August 2024, the Respondent refused the Modification Application.

Current Proceedings

6. The Applicant, dissatisfied with the Respondent’s determination of the Modification Application, filed a Class 1 Appeal Application on 1 October 2024 under subs 8.9 of the EPA Act seeking to modify the Development Consent. Sutherland Shire Council is the Respondent to this appeal by virtue of s 8.15(4) of the EPA Act.

7. The Respondent filed a Statement of Facts and Contentions (SOFAC) with the Court on 28 October 2024. A Joint Expert Report (Planning) (the Joint Report) was filed with the Court on 26 February 2025.

Section 34AA(2) conciliation conference

8. The Court arranged a conciliation conference for the Modification Application under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 March 2025. I presided over the conciliation conference, which commenced on site. A number of submitters spoke at the on-site view (refer to paragraphs [21] – [22] below).

9. The parties advised that between 1 November 2024 and 16 December 2024 they had participated in without prejudice discussions resulting in an agreed amended design. The resultant amended architectural plans were filed with the Court on 3 March 2025.

10. The parties advise that amendments agreed to the proposed development in the amended Modification Application can be summarised as follows:

11. A blade wall has been introduced at the northern end of the terrace. A perspective has been included in the amended plans to demonstrate any overlooking to the adjacent rear studio is removed;

12. A glass balustrade has been introduced in line with the BBQ creating a non-trafficable area at the northern end of the terrace; and

13. A privacy screen half the width of the terrace has been introduced to the southern end of the terrace with fixed blades. A perspective is included in the amended plans to demonstrate any overlooking has been removed.

14. A signed s 34 agreement with Annexures A and B was filed with the amended plans with the Court on 3 March 2025. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (the Jurisdictional Statement).

15. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the Modification Application, subject to conditions.

16. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to grant consent to the Modification Application.

17. 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.

18. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Jurisdictional Prerequisites

Substantially the Same Development

16. Pursuant to s 4.55(1A) of the EPA Act, a consent authority may modify a development consent if it is satisfied that:

17. the proposed modification is of minimal environmental impact;

18. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all);

19. it has notified the application (if required) and has considered any submissions made concerning the proposed modification; and

20. it has considered any submissions made concerning the proposed modification.

21. The parties advise that the proposed development continues to be a contemporary single dwelling, with the proposed changes limited to the privacy treatment on the level 2 balcony of the dwelling. Given the proposed modifications are limited to appropriate screening and trafficability of the already constructed level 2 balcony, the parties submit that the Court can be satisfied that the Modification Application is of minimal environmental impact as required by s 4.55(1A)(a).

22. The parties also submit that the Court can be satisfied that the Modification Application is “substantially the same” as required by s 4.55(1A)(b), and the Applicant has provided a quantitative and qualitative assessment of the proposed modifications to support this conclusion in the Statement of Environmental Effects (SEE) accompanying the Modification Application.

Owner’s consent

19. The parties advise that owner’s consent was provided by the Applicant in the lodgement of the Modification Application. The Applicant is the owner of the site.

Community Participation (Sch 1, Div 2, cl 7(1) EPA Act)

20. The Modification Application was notified between 12 June 2024 and 27 June 2024 in accordance with s 4.55(1A)(a) of the EPA Act. Eight submissions were received, concerned primarily with potential overlooking being increased as a result of the proposed change to the existing privacy treatment on the level 2 balcony of the dwelling on the site. Four submitters made submissions to the Court at the on-site view.

21. The parties advise that the Town Planners in the Joint Report have also considered the privacy and overlooking impacts of the original development consent, and that they have considered the reasons for the imposition of condition 2 in determining that the amended design sufficiently protects adjoining properties from overlooking. The Respondent advised that the amended plans were provided to submitters for their consideration prior to the on-site view.

Conditions

22. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

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

23. The parties advise that the BASIX Certificate approved by the Development Consent remains sufficient, as the Modification Application does not propose changes that will result in the requirement for an amended BASIX Certificate.

24. Other State Environmental Planning Policies

25. The Respondent advised in its SOFAC that a number of other State Environmental Planning Policies apply to the site, as follows:

26. State Environmental Planning Policy No.71 – Coastal Protection 2002;

27. State Environmental Planning Policy No.55 – Remediation of Land 1998;

28. State Environmental Planning Policy (Biodiversity and Conservation) 2021; and

29. State Environmental Planning Policy (Resilience and Hazards) 2021.

30. The original development consent has been previously assessed as complying with the requirements of these policies. No issues were raised by the Respondent in its SOFAC in relation to any of these policies.

Sutherland Shire Local Environmental Plan 2015

27. The Sutherland Shire Local Environmental Plan 2015 (the LEP) applies to the site and to the proposed development. Under the LEP provisions:

28. The site is zoned C3 – Environmental Management pursuant to cl 2.2 of the LEP;

29. The proposed development is permitted with consent in the C3 zone; and

30. I am satisfied that the proposed modification of the screening of the Level 2 balcony screening is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

31. Clause 6.17(b) of the LEP requires the consent authority to consider 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. I am satisfied that these matters have been considered by the Respondent in reaching the s 34 agreement for the proposed modification of the development consent.

Sutherland Shire Development Control Plan 2015

29. The parties advise that the relevant requirements of the DCP as raised by the Respondent in the SOFAC have been considered and satisfied.

Conclusion

30. Having considered the advice of the parties provided above at [16]-[28], I am satisfied that:

31. the Applicant’s amended Modification Application can be approved having regard to the matters in subs 4.15(1)(b)-(e) of the EPA Act;

32. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(1A) of the EPA Act have been satisfied;

33. approval of the proposed development is in the public interest.

34. Further, 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.

35. 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.

Notes

33. The Court notes:

34. that Sutherland Shire Council, as the relevant consent authority, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Modification Application MA24/0116 made on 3 March 2025 to rely on the documents specified below:

| Drawing No | Drawing Title | Prepared By | Date | | DA04 (Revision J) | Level 2 Floor Plan (Living) | MHNDUnion | 29/01/2025 | | DA07 (Revision J) | North Elevation | MHNDUnion | 29/01/2025 | | DA08 (Revision J) | East (Waterfront) Elevation | MHNDUnion | 29/01/2025 | | DA09 (Revision J) | South Elevation | MHNDUnion | 29/01/2025 | | DA011 (Revision J) | Section A | MHNDUnion | 29/01/2025 | | DA012 (Revision J) | Section B | MHNDUnion | 29/01/2025 | | DA013 (Revision I) | Sight Line to 25 Pacific Cres | MHNDUnion | 29/01/2025 | | DA014 (Revision I) | Sight Line | MHNDUnion | 29/01/2025 |

Orders

34. The Court orders that:

35. The appeal is upheld.

36. Pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979, Modification Application MA24/0116, which seeks to modify Development Consent DA19/0616 for the demolition of existing structures and construction of a contemporary dwelling house including the amalgamation of the two sites, to change the design of the northern side level 2 balcony to non-trafficable and delete condition 2(A)(ii) requiring privacy screens at 23 Pacific Crescent, Maianbar, (legally known as Lot 1 DP 1296971) is determined by way of approval.

37. Development Consent No. DA19/0616 is modified in the terms in Annexure A.

38. Development Consent No. DA19/0616 as modified by the Court is Annexure B.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

Annexure B

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Amendments

27 May 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”): (1) amend wording in the judgment body at [6] and [29(2)] to correct a reference to legislation; and (2) amend the orders of the Court to include a new Order 1, renumber the remaining orders, and correct a reference to legislation in Order 2.