Nelson v Sutherland Shire Council

Judgment

1. COMMISSIONER: Nicholson Parade, in Cronulla, runs generally parallel to the foreshore of the Port Hacking River. This appeal concerns a development application for the construction of a dual occupancy at 123 Nicholson Parade. The development application was lodged on 19 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 4 July 2024 and continued on 18 and 22 July 2024. I presided over the conciliation conference.
3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final signed agreement was submitted on 22 July 2024. The agreement followed the grant of leave on 18 July 2024 torely on amended documents pursuant to orders sought in a Notice of Motion filed on 26 June 2024, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include an increase in the rear setback, reduction in height, addition of articulation to the side elevation and improved landscaping, and result in a dual occupancy that complies with development standards for height and floor space ratio.
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 Note dated 24 July 2024 that sets out the matters for consideration prior to the grant of development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.