Mothers Group Projects Australia Pty Ltd v Sutherland Shire Council

Catchwords: DEVELOPMENT APPEAL – multi-dwelling housing – strata subdivision – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 37, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1
Sutherland Shire Local Environmental Plan 2015, cll 2.6, 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.14, 6.2, 6.4

Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349
PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139
Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1169

Category: Principal judgment

Parties: Mothers Group Projects Australia Pty Ltd
(ABN 39 663 224 717) (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
N Nadj (Solicitor)(Applicant)
J Amy (Solicitor)(Respondent)
Solicitors:
Bick and Steele (Applicant)
Sutherland Shire Council (Respondent)

File Number(s): 2024/466844

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA23/0823 seeking consent for the demolition of existing structures and the construction of a three- storey multi-dwelling housing development with four lot strata subdivision (Proposed Development) at 61 Denman Avenue, Woolooware legally described as Lot 25 in DP 6620 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 17 April 2025. I presided over the conciliation conference.

3. Pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Applicant applied to Council to amend the Development Application to rely on amended architectural plans and documents (Amended Proposal). Pursuant to s 38 of the EPA Regulation, the Council approved the application to amend the Development Application.

4. The parties agree that all contentions raised in the Statement of Facts and Contentions filed by the Respondent on 28 January 2025 (SOFAC) have been resolved by the preparation of revised architectural plans and documents and agreed conditions of consent.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be various provisions of the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional statement provided to the Court.

9. The Applicant is the owner of the Site and has provided landowner’s consent a copy of which is at Tab 2 of the Class 1 Application filed with the Court.

10. The Land is zoned R3 – Medium Density Residential pursuant to the SSLEP and development for the purposes of multi dwelling housing is permitted in this zone with development consent in accordance with the zone R3 Land Use Table in the SSLEP.

11. The Proposed Development involves strata title subdivision which is permissible with consent: cl 2.6, SSLEP. The minimum lot size development standard for subdivision does not apply to strata subdivision: cl 4.1(3), SSLEP. The SSLEP does not otherwise contain any development standards prescribing a minimum lot size for strata subdivision of the Site.

12. There are minor earthworks proposed which are permissible with consent: cl 6.2, SSLEP. The parties agree that as the Site has been used for residential purposes and there is no history to suggest that the Site is contaminated, accordingly, no further investigation under s 4.6(1)(b) and (c) of the State Environmental Planning Policy (Resilience and Hazards) 2021 is required.

13. BASIX Certificate (Certificate Number: 1378282M_02) dated 6 May 2024 has been filed at Tab 19 of the Class 1 Application, confirming that the Proposed Development will meet the NSW Government’s requirements for sustainability in accordance with the State Environmental Planning Policy (Sustainable Buildings) 2022 including the terms of s 2.1(5) because the embodies emissions have been quantified.

14. The Amended Proposal proposes a maximum building height of 8.976m (refer to the sections on Architectural drawing No 2304_11 Rev B). Therefore, there is no contravention of the 9m height of building development standard pursuant to cl 4.3 of the SSLEP.

15. The Land is subject to a floor space ratio (FSR) development standard of 0.7:1 pursuant to cl 4.4 of the SSLEP, which is not contravened because the Proposed Development proposes an FSR of 0.64:1 (refer to the calculations on Architectural drawing No 2304_14 Rev B).

16. The Site does not contain a heritage item and is not located within a heritage conservation area. It is also not located within the vicinity of any heritage items: cl 5.10, SSLEP.

17. The Site is not located within in a flood planning area: cl 5.21, SSLEP.

18. There is no requirement for an acid sulfate soils management plan pursuant to cl 6.1 of the SSLEP because the Proposed Development requires only minor excavation which will not lower the water table below Reduced Level (RL) 1.

19. The Development Application originally proposed a piped system to a combined rainwater tank and on-site detention facility for the on-site storage of stormwater. A level spreader was proposed for the disposal of stormwater from the on-site detention system. Following initial feedback from Council on the proposed stormwater design, the Applicant amended the proposal to provide for the disposal of stormwater via an infiltration system. That system remains the subject of the Development Application.

20. Clause 6.4 of the SSLEP requires the Court to be satisfied of various matters in relation to stormwater management before the granting of development consent. In its SOFAC, the Council contended that the proposed infiltration system was unacceptable as it would not avoid significant impacts on the adjoining properties or minimise adverse impacts of stormwater runoff and it further contended that the Applicant had failed to obtain an easement over a downstream property to remove the risk associated with failure of the Applicant’s proposed stormwater system.

21. The Applicant has reconsidered its position, and assessed whether an easement over an adjoining property would be feasible. To do this, the Applicant has prepared a Proposed Easement Plan 230491, C05, Rev 4 prepared by Greenview Consulting dated 19 February 2025 (Easement Plan) indicating an easement and drainage works over 2 Ambyne Street, Woolooware and provided this to Council.

22. The agreed conditions of consent include a deferred commencement condition requiring the registration of a drainage easement to allow for drainage of the Land across 2 Ambyne Street into the Council’s drainage system within Ambyne Street.

23. This Easement Plan was prepared to indicate how the Land can be drained across an adjoining property to satisfy cl 6.4 of the SSLEP and to enable Council’s expert to undertake an assessment of the future works.

24. In this regard, the Applicant also provided to Council an Arborist’s letter from Jacksons Nature Works dated 18 February 2025 regarding existing trees located in the proximity of the future drainage works (refer to Tab 6 in the Applicant’s s 34 Bundle of Documents). Council’s expert is satisfied that due to the depth of the proposed easement infrastructure (tunnel boring a 225mm pipe some 1.6m underground) the trees will be sufficiently protected and retained the neighbouring trees.

25. The Easement Plan allows an assessment of the feasibility and off-site environmental impacts of future drainage works. This approach is consistent with Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349, followed in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 where Preston CJ discusses the “likely impacts ground” at [5], [24], [30] and [38] which were referred to in the decision of PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 regarding the need to be able to evaluate and assess matters of impact that are directly related to the development at [141] - [145].

26. The further stormwater material has been prepared in a manner consistent with the approach accepted in Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1169 at [27].

27. Having regard to the above, the parties agree that the further stormwater material addresses the relevant matters and minimises the impacts of urban stormwater on the Land and within the locality. On this basis, the Court is also be satisfied that the matters set out in cl 6.4 of the SSLEP have been addressed.

28. The total landscaping for the Development Application proposes total landscaped area of 30.5% (refer to the Landscape Area on Architectural drawing No 2304_15 Rev B) complying with the minimum landscaped area development standard of 30% pursuant to cl 6.14 of the SSLEP

29. 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. I adopt the reasons given by the parties as set out in this judgment.

30. 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.

Notations:

31. The Court notes:

32. Sutherland Shire Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA23/0823 the subject of these proceedings, to rely on the amended plans and documents as follows:

(a) Architectural Drawings

| DRAWING NO: | DESCRIPTION | ISSUE | DATE | | 2304_00 | TITLE PAGE | REV B | 17/02/2025 | | 2304_01 | SITE ANALYSIS | REV B | 17/02/2025 | | 2304_02 | SITE PLAN | REV B | 17/02/2025 | | 2304_03 | LEVEL 1 PLAN_1/2 | REV B | 17/02/2025 | | 2304_04 | LEVEL 1 PLAN_2/2 | REV B | 17/02/2025 | | 2304_05 | LEVEL 2 PLAN_1/2 | REV B | 17/02/2025 | | 2304_06 | LEVEL 2 PLAN_2/2 | REV B | 17/02/2025 | | 2304_07 | LEVEL 3 PLAN_1/2 | REV B | 17/02/2025 | | 2304_08 | LEVEL 3 PLAN_2/2 | REV B | 17/02/2025 | | 2304_09 | ROOF PLAN | REV B | 17/02/2025 | | 2304_10 | ELEVATIONS | REV B | 17/02/2025 | | 2304_11 | SECTIONS | REV B | 17/02/2025 | | 2304_12 | CONSTRUCTION & WASTE MANAGEMENT PLAN | REV B | 17/02/2025 | | 2304_13 | DRAFT SUBDIVISION PLANS | REV B | 17/02/2025 | | 2304_14 | FSR CALCULATIONS | REV B | 17/02/2025 | | 2304_15 | LSA CALCULATIONS | REV B | 17/02/2025 | | 2304_16 | SHADOW DIAGRAMS - JUNE | REV B | 17/02/2025 | | 2304_17 | SHADOW DIAGRAMS - SEPTEMBER & DECEMBER | REV B | 17/02/2025 | | 2304_18 | SOLAR ANALYSIS - POS | REV B | 17/02/2025 | | 2304_19 | SOLAR ANALYSIS - LIVING ROOM WINDOWS | REV B | 17/02/2025 | | 2304_20 | PRIVACY ANALYSIS PLAN | REV B | 17/02/2025 | | 2304_21 | PRIVACY ANALYSIS - T1 & T2 | REV B | 17/02/2025 | | 2304_22 | PRIVACY ANALYSIS - T3 | REV B | 17/02/2025 | | 2304_23 | PRIVACY ANALYSIS - T4 | REV B | 17/02/2025 | | 2304_24 | ENTRY TRAFFIC PLAN | REV B | 17/02/2025 |

(b) Landscape Plans

| DRAWING NO: | DESCRIPTION | ISSUE | DATE | | L-01 | Cover Sheet | REV D | 14/02/2025 | | L-02 | GF Landscape Plan | REV D | 14/02/2025 | | L-03 | GF Planting Plan | REV D | 14/02/2025 | | L-04 | L1 Planting Plan | REV D | 14/02/2025 | | L-05 | L2 Planting Plan | REV D | 14/02/2025 | | L-06 | Panting Details | REV D | 14/02/2025 | | L-07 | Existing Tree | REV D | 14/02/2025 | | L-08 | Notes | REV D | 14/02/2025 | | L-09 | Specification | REV D | 14/02/2025 |

(c) Stormwater Drainage Plan

| DRAWING NO: | DESCRIPTION | ISSUE | DATE | | 230491, C02 | Ground Floor Drainage Plan prepared by Greenview Consulting | REV 6 | 19/02/2025 |

(d) Statement of Environmental Effects dated 3 April 2025, Rev C prepared by Avenue Town Planning (e) Drawing 230491, C05, Rev 4 – Proposed Easement Plan – 2 Ambyne Street prepared by Greenview Consulting dated 19 February 2025 (f) Letter from Jacksons Nature Works dated 18 February 2025

2. The amended plans were filed with the Court 10 April 2025.

Orders:

32. The Court orders:

33. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000 within 28 days from the date of this Order.

34. The appeal is upheld.

35. Development Consent is granted to Development Application DA23/0823 for the demolition of existing structures and the construction of a three-storey multi-dwelling housing development comprising of four townhouses with a four lot strata subdivision on land described as Lot 25, DP 6620 and known as 61 Denman Avenue, Woolooware subject to the conditions of consent at Annexure A.

E Espinosa

Commissioner of the Court

Amended Annexure A.366036,pdf

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Amendments

07 May 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”); Correct Annexure A by correcting name of suburb on page 3 and uploaded as Amended Annexure A.