Mattern v Sutherland Shire Council

Texts Cited: Planning for Bush Fire Protection (2019), NSW Rural Fire Service

Category: Principal judgment

Parties: Duncan Mattern (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
S Harlen (Solicitor) (Applicant)
C Mortimer (Solicitor) (Respondent)
Solicitors:
Harriss Jones Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/278353

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: A new garage and other structures are proposed in the frontage to a property located at the bend in Magnolia Street in Kirrawee. Given the bend in the street, the site presents as a corner site, with the property presenting to the street both to the north and east.

2. A portion of the site has been subject to unauthorised excavation resulting in an area of rock face surrounding an existing slab that has also been constructed without consent.

3. To this end, development application DA24/0680 was lodged with Sutherland Shire Council (the Council) by the applicant in these proceedings, Mr Mattern, on 29 November 2024 and exhibited from 5 December 2024 to 13 January 2025 in response to which four submissions were received – three of which are in support of the proposal.

4. The proposal was originally for a double garage with green roof and pedestrian stairs providing access from the eastern frontage to Magnolia Street up to the existing dwelling that is elevated above the street.

5. The development application was refused by the Council on 21 May 2025 and Mr Mattern filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 21 July 2025.

6. The appeal was listed for mandatory conciliation on 4 December 2025, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act). I presided at the conciliation conference.

7. The proceedings commenced with an onsite view at which three residents of Magnolia Street spoke in support of the development application.

8. Following the onsite view, the conciliation conference convened at Court at which the parties reached in-principle agreement on the issues in dispute, subject to amendments to the development for which a brief adjournment was granted.

9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court, dated 4 December 2025, and amended plans and other documents were filed on the same date.

10. The parties ask me to approve their decision as set out in the agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared on behalf of Mr Mattern, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

11. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [32].

12. The site is located within an area designated R2 Low Density Residential in the land use table of the Sutherland Shire Local Environmental Plan 2015 (SSLEP), where the proposed uses are permitted with consent, where consistent with the objectives of development in the R2 zone:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.

• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.

• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.

13. The proposed garage and other structures are within the height of buildings standard of 8.5m as shown on the relevant map at cl 4.3(2) of the SSLEP.

14. On the basis of the calculation at Section 9.3 of the Council’s Assessment Report, I accept the parties agreed position that the proposed development complies with the floor space ratio standard at cl 4.4 of the SSLEP.

15. The site is not identified on the Acid Sulfate Soils map at cl 6.1(2) of the SSLEP.

16. The amended plans identify areas of fill that parties agree serves to support landscape planting within the front setback of the subject site, retained by retaining walls that are of a height nominated by reference to Reduced Levels. Excavation is required to resolve levels between the existing garage slab and stairs proposed to the south. Stormwater concept plans prepared by architects En Frame on behalf of Mr Mattern show connection of the proposed drainage on the site to the Council stormwater network on Magnolia Street. On this basis, and on the information contained in the Landscape Plans prepared by Site Design + Studios, I have considered the earthworks proposed and conclude the relevant matters at cl 6.2(3) are adequately addressed.

17. Relatedly, I have considered the green roof proposed over the garage and extent of landscape area depicted in calculations on drawing Sheet 05 of the architectural plans which satisfies me that the proposal is designed to maximise the use of water permeable surfaces on the land. A 4,000L rainwater tank is to be located within the proposed garage and Landscape Plan L-03 Revision A identifies the reuse of stormwater for irrigation which also satisfies me that on-site stormwater retention and reuse is proposed, which also serves to minimise and mitigate the impact of stormwater runoff from the subject site, pursuant to cl 6.4(3) of the SSLEP.

18. Those calculations above also satisfy me that the proposal complies with the minimum percentage of the site that is to be landscaped in accordance with the relevant Landscaped Area Map at cl 6.14(2) of the SSLEP.

19. Having considered those provisions at cll 6.16 and 6.17 of the SLEP that are of relevance to the proposal, I accept the agreement of the parties that the design and development outcomes for the urban environment of Sutherland Shire are likely to be attained by the development, and that the presentation of the development in its streetscape sufficiently integrates into the existing and desired future character of the area by recognition given to the public domain in the design of the development by the addition of tiered landscaping to the bend in Magnolia Street that responds to the steeply sloping natural landform of the site.

20. A Sightline Assessment at Annexure B prepared by McLaren Traffic Engineering dated 2 July 2025 concludes a sight distance of 28.5m is achieved from the garage in the direction of the bend in Magnolia Street, and from the driveway that is the subject of Roads Act Consent No. RDA24/0004 dated 11 January 2024. The parties have agreed that the existing kerb crossing located to the north of the site is to be removed which provides additional on street parking that the parties agree enhances the public domain from its current condition.

The site is bushfire prone

21. As the site is identified as Bush fire prone land, development consent is precluded by s 4.14 of the EPA Act unless the consent authority, or the Court on appeal, is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (2019) prepared by the NSW Rural Fire Service.

22. The Council accepts, and the architectural plans denote, that a Bush Fire Attack Level (BAL) of 12.5 is applicable and agreed conditions of consent at Conditions 20 and 21 apply to require consistency with Planning for Bush Fire Protection.

State Environmental Planning Policy (Resilience and Hazards) 2021

23. I have considered whether the site is contaminated pursuant to clause 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021*.* On the basis of the assessment made by Council at Section 9.1 of the Development Assessment report, I am satisfied that the site is suitable for the development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. As the site is located within the Georges River Catchment, Part 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies.

25. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised.

26. As stated at [17], the architectural plans provide for a 4,000L rainwater tank that I note is proposed to be fitted with a first flush system, shown connected to an existing stormwater pit with filtration devices. On this basis, I accept that the water quality is improved and the water flow likely minimised. As such I am satisfied that the effect of the proposed development on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised

27. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied, there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

28. I note that the site is not identified as flood liable land to which s 6.8 of the SEPP is directed and so does not apply. Neither will the proposed development have an impact on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

Conclusion

29. 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.

30. 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.

31. The Court notes that:

32. Sutherland Shire Council, as the relevant consent authority, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amending of development application No. DA24/0680 by those amended plans and other documents listed below, and that were filed with the Court on 4 December 2025:

| Plan number | Revision number | Plan title | Drawn by | Date of plans | | Architectural Plans | | Job No.1090 Sheet 01 | F | Site/Roof Plan, Garage Floor Plan | En[frame] architecture | 4/12/25 | | Job No.1090 Sheet 02 | F | Ground Floor Plan | En[frame] architecture | 4/12/25 | | Job No.1090 Sheet 03 | F | North & South Elevations, Sections A & B | En[frame] architecture | 4/12/25 | | Job No.1090 Sheet 04 | F | East & West Elevations, Section C | En[frame] architecture | 4/12/25 | | Job No.1090 Sheet 04 | F | Calculations | En[frame] architecture | 4/12/25 | | Job No.1090 Sheet 07 | F | 3D Impressions | En[frame] architecture | 4/12/25 | | Concept Landscape Plans | | L-00 | A | Cover Sheet | Site Design Studios | 3/12/2025 | | L-01 | A | Landscape Plan | Site Design Studios | 3/12/2025 | | L-02 | A | Standard Details | Site Design Studios | 3/12/2025 | | L-03 | A | Notes | Site Design Studios | 3/12/2025 | | L-04 | A | Specification | Site Design Studios | 3/12/2025 | | Documents | | Green Roof Maintenance Schedule prepared by Site Design + Studios dated 3 December 2025 | | Landscape Design Statement prepared by Johnny Derwent dated 3 December 2025 | | Endorsement of Conceptual Stormwater Design prepared by HCT Engineering dated 3 December 2025 | | Annexures to the Traffic Engineering Joint Expert Report filed 5 November 2025: Annexure B Sight Line Diagram dated 1 July 2025, Annexure C Compass IOT Data and Annexure D Grade Changes prepared by McLaren Engineering | | Letter from Adam Mainey dated 4 December 2025 addressing Part 6.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) |

2. The amended plans and other documents were filed with the Court on 4 December 2025.

Orders

32. The Court orders that:

33. The appeal is upheld.

34. Development Application DA24/0680 for the construction of a detached garage, terrace landscaping, front fencing and reinstatement of kerb at 25 Magnolia Street, Kirrawee is determined by the grant of consent subject to conditions contained in Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A.283 KB.pdf