Millar & Millar v Sutherland Shire Council

Category: Principal judgment

Parties: WR Millar & A Millar (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
P Clarke (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2025/164198

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), being an appeal against the deemed refusal of Development Application No. DA24/0504 for a change in the land use of a former “Retail Premises” (bank) to a “Recreation Facility – Indoor (Gymnasium)”, including internal fit-out for the proposed purpose, extended 24/7 hours of operation and associated business identification signage at 816 Old Princes Highway, Sutherland NSW 2232 (known legally as Lot 1 of DP 717026) (site). The application was subsequently refused by the Respondent on 2 May 2025.

2. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference, which I presided over, was held on 22 August, 8 October and 4 November 2025.

Outcome

3. At the conciliation conference, agreement was reached 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 that decision is a decision that the Court could have made in the proper exercise of its functions.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the matters that the Court must consider prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, the amended plans that are referred to in Condition 1 of Annexure A and additional information submitted in response to the contentions. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. The Court notes that the Council as the consent authority consented to the amendment of the application pursuant to s 37 and 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to include the following documents:

| Document | Date | | 1. | Architectural plan set (Rev B) Prepared by Archispectrum | 29 October 2025 | | 2. | Traffic and Parking Impact Assessment Report Prepared by McClaren Traffic Engineers & Road Safety Consultants | 8 August 2025 | | 3. | Heritage Management Document Prepared by GBA Heritage | 8 August 2025 | | 4. | Fire Engineering DA Supporting Letter Prepared by BCA Innovations | 7 October 2025 | | 5. | Access 2022 A2 Indicative Compliance Report Prepared by Building Innovations Australia | 7 October 2025 | | 6. | BCA 2022 A2 Indicative Compliance Report Prepared by Building Innovations Australia | 7 October 2025 | | 7. | BCA & Access Performance-Based Design Brief Prepared by Building Innovations Australia | 7 October 2025 | | 8. | Revised Plan of Management Prepared by Prestige Town Planning | 29 August 2025 | | 9. | Structural Engineering Report Prepared by MPN Group Pty Ltd | 12 September 2025 |

6. The plans and documents comprising the amended application are listed under Condition 1 of the conditions of consent at Annexure A and were submitted to the Court on 26 November 2025. In summary the changes made to the proposal that resulted in the application now being satisfactory to the parties include changes to the proposed ‘Anytime Fitness’ signage to ensure that it was sympathetic to the heritage significance of the building, removal of proposed decals from the windows and minor internal reconfiguration.

Jurisdictional matters

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons set out below.

State Environmental Planning Policy (Resilience and Hazards) 2021

8. The provisions of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) apply to the site. The proposal relates to an existing building which has been used for a commercial premises and residence for a significant period of time. Accordingly, the parties agree, and I accept, that the proposal does not give rise to potential for contamination and that therefore the provisions of s 4.6 of the RH SEPP have been considered and are satisfied.

State Environmental Planning Policy (Industry and Employment) 2021

9. The proposal includes business identification signage and therefore the provisions of Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP) apply. I accept that consideration has been given to the requirements of Ch 3 and Sch 5 based on the parties’ agreement and the assessment contained in the Statement of Environmental Effects prepared by Prestige Town Planning (29 August 2024).

Sutherland Shire Local Environmental Plan 2015

10. The site is zoned E2 ‘Commercial Centre’ in accordance with the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The proposed development for a Recreation facility – Indoor is permissible with consent in the zone and the parties advised regard has been had to the zone objectives, as far as relevant, as required by cl 2.3.

11. Clause 4.3 height of buildings applies to the site, permitting a maximum height of 40m. The proposal does not alter the existing maximum height of the building being contained within the existing building envelope and is compliant with the control.

12. Clause 4.4 floor space ratio (FSR) applies to the site, permitting a maximum FSR of 3.5:1. The proposal provides for a floor space ratio of 1.27:1 (935m2 / 734.7m2) and therefore complies with the control.

13. The site is identified as a local heritage item known as ‘Commonwealth Bank’ Item 3633 as identified in Sch 5 to the LEP. Accordingly, cl 5.10 applies and requires an assessment of the heritage impact of the proposed development. A Statement of Heritage Impact (three + one heritage, 16 August 2024) was submitted with the application in accordance with cl 5.10(5) and a further updated assessment was also submitted (GBA Heritage, 8 August 2025). In addition a Heritage Management document (GBA Heritage, August 2025) has also been prepared. Based on these documents and the parties’ agreement I accept that the relevant provisions of cl 5.10 have been complied with and that the proposal will not result in an unacceptable heritage impact.

Other matters

14. The development application is made with the consent of the owners of the site in accordance with s 23 of the EPA Reg. In this regard the Court notes that a discrepancy in the owner’s details has been resolved between the parties and accordingly the applicant is validly made.

15. The Respondent notified the development application between 24 September and 9 October 2024. No submissions were received in response to the notification.

Conclusion

16. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

18. The Court orders:

19. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $10,000 payable within 28 days.

20. The appeal is upheld.

21. Development Consent is granted to Development Application No. DA24/0504 for a change in the land use of a former “Retail Premises” (bank) to a “Recreation Facility – Indoor (Gymnasium)”, including internal fit-out for the proposed purpose, extended 24/7 hours of operation and associated business identification signage at 816 Old Princes Highway, Sutherland NSW 2232 (known legally as Lot 1 of DP 717026) subject to the conditions of consent at Annexure A.

H Miller

Acting Commissioner of the Court

Annexure A (333 KB, pdf)

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