Larkin v Sutherland Shire Council

Category: Principal judgment

Parties: Lana Carlisle Larkin (First Applicant)
Maria Magdolena Condor-Fazio (Second Applicant)
Craig Turner (Third Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicants)
J Cole (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicants)
Messenger Cole Solicitors (Respondent)

File Number(s): 2024/458977

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Sutherland Shire Council, of Development Application DA24/0297 which seeks consent for the construction of a shared jetty, ramp, pontoon, two turpentine piles and alterations to an upper entry to the seawall at 168 and 172 Gannons Road, Caringbah South.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 May 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. Subsequently, the matter concluded in conciliation and did not proceed to a hearing.

5. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicants amending the development application. These amendments included the shortening of the jetty structure from 27.2m to 20m long to address the Council’s contentions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. 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 jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties outlined in a jurisdictional submission, and from this I note the following points.

Jurisdictional matters

7. The development application was made with the written consent of the owners of the land, being the two properties that form the subject site, and the consent of the Department of Planning, Housing and Infrastructure as the jetty extends onto Crown land below the mean high water mark.

8. The application was adequately notified from 21 June to 8 July 2024. One submission was received. The application as amended under these proceedings was further notified, and no formal submissions received. No residents made oral submissions at the commencement of proceedings and, based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. The subject site is zoned W2 Recreational Waterways under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), within which development for the purposes of a water recreation structure is permissible with consent. The proposed development is consistent with the objectives of this zone.

10. The site is not identified as a heritage item, nor located within a heritage conservation area.

11. The site is also not identified in the flood planning area.

12. Pursuant to SSLEP cl 6.1, the site is identified as Class 1 and Class 5 on the Acid Sulfate Soils Map, with the location of the proposed works being within the area mapped Class 1. From the amended application and the parties’ submission, I accept that the works will not involve the disturbance of less than 1 tonne of soil and are not likely to lower the watertable, and subsequently consent is not required under this clause.

13. The proposal does not include any earthworks, and therefore consideration under SSLEP cl 6.2 is not required.

14. The proposal also does not incorporate any works that might impact on stormwater management on the site. Accordingly, from the parties’ submission, I am satisfied that the development meets the requirements of SSLEP cl 6.4(3), in that it does not affect water permeable surfaces, on site stormwater retention or runoff to any waterway.

15. The site is mapped as terrestrial biodiversity land pursuant to SSLEP cl 6.5. From the parties’ submission and the Marine Habitat Report by Harbour Planning dated 16 February 2022, and the letter from the Department of Primary Industries dated 9 May 2025, I accept that the matters listed in cl 6.5(3) have been considered, and that the development is designed, sited and will be managed to avoid any significant environmental impact on terrestrial biodiversity.

16. The site is mapped as environmentally sensitive land on the riparian land and watercourses map, pursuant to SSLEP cl 6.7. Noting that the Marine Habitat Report demonstrates the development will be positioned away from the mapped seagrass in this bay, from this and the parties’ submission I accept that the matters listed in cl 6.7(3) have been considered, and that the development is designed, sited and will be managed to avoid any significant adverse environmental impact on riparian land and watercourses.

17. Pursuant to SSLEP cl 6.8, the site is mapped as environmentally sensitive land – environmental and scenic qualities of natural landforms. I note that the amended application includes the removal of several unauthorised built structures including a low concrete wall, a floating dock and a kayak rack which the Council deemed to cause unnecessary visual clutter. The parties submit, and I accept that the proposed development will improve the scenic quality of the area, and will not have any adverse impact of the environmental and scenic qualities of natural landforms. I further accept that the proposed development therefore is designed, sited and will be managed to avoid any significant adverse environmental impact.

18. Although the development occurs within the foreshore area, pursuant to SSLEP cl 6.9, development for the purpose of jetties and water recreation structures are permissible with consent, subject to them not altering the shape, natural form or drainage of the foreshore area. Noting that the proposed development meets these criteria the parties further submit, and I accept, that the matters listed in cl 6.9(4) have been considered, and that the development will meet the requirements of cl 6.9(3).

19. SSLEP cl 6.16 Urban Design General applies to the land, however I am satisfied that the clause has no work to do with this development.

20. Pursuant to Ch 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the site is mapped as being within the Coastal Use Area, and the part of the land where the proposed development is located is mapped as being within the Coastal Environment Area. From the parties’ submissions and the information within the Marine Habitat Report, I accept that the development is not likely to cause an adverse impact on any of the items listed in ss 2.10(1) or 2.11(1)(a). I further accept that the proposed development will be designed, sited and will be managed to avoid an adverse impact on the coastal use area and coastal environment area in the ways identified in ss 2.10 and 2.11.

Conclusion

21. For these reasons, 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 and accordingly, I am required to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

23. The respondent, Sutherland Shire Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicants amending Development Application No. DA24/0297 to rely on the documents listed below:

| Plan number | Plan title | Drawn by | Date of plans | | DWG 01 | Site Plan - 20m Jetty | Harbour Planning | April 2025 | | DWG 02 | Elevation | Harbour Planning | April 2025 | | | Access Plan for 172 Gannons Road | Harbour Planning | April 2025 |

23. The Court orders:

24. The appeal is upheld.

25. Development Application DA24/0297 for the construction of a shared jetty, ramp, pontoon, jetty end piles and alterations to the upper entry to the seawall at Lot 330 in Deposited Plan 1145372 also known as 168 Gannons Road, Caringbah South and Lot 100 in Deposited Plan 1127592, also known as 172 Gannons Road, Caringbah South, is determined by the grant of consent subject to the conditions contained in Annexure A.

E Washington

Commissioner of the Court

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Annexure A (203 KB, pdf)