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Qiu v Sutherland Shire Council [2026] NSWLEC 1080 | Case summary | Zoe

NSWNSWLEC

Qiu v Sutherland Shire Council

[2026] NSWLEC 1080

Land and Environment Court (NSW)|2026-02-24|Before: Washington C

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-02-24

Before

Washington C

Catchwords

DEVELOPMENT APPLICATION – appeal against conditions of consent
– construction of a jetty and sea stairs – conciliation
conference
– agreement between the parties – orders

Source

Original judgment source is linked above.

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Catchwords

DEVELOPMENT APPLICATION – appeal against conditions of consent– construction of a jetty and sea stairs – conciliationconference– agreement between the parties – orders

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Qiu v Sutherland Shire Council [2026] NSWLEC 1080

Hearing dates: Conciliation conference on 18 February 2026

Date of orders: 24 February 2026

Decision date: 24 February 2026

Jurisdiction: Class 1

Before: Washington C

Decision: The Court orders:
(1) The appeal is upheld.
(2) Development application number DA25/0240 for the construction of a jetty and sea stairs on Crown Land adjacent to 89 Kangaroo Point Road, Kangaroo Point and on land known as 89 Kangaroo Point Road, Kangaroo Point being Lot 7 in Deposited Plan 9823, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPLICATION – appeal against conditions of consent – construction of a jetty and sea stairs – conciliation conference – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 4.46, 8.7
Land and Environment Court Act 1979 (NSW), ss 34AA, 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13 Sutherland Shire Local Environmental Plan 2015, cll 6.1, 6.7, 6.9, 6.16

COMMISSIONER: These Class 1 proceedings arise from the imposition of a condition on the development consent of application DA25/0240, made to Sutherland Shire Council. This application seeks consent for the construction of a jetty and sea stairs below the mean high water mark at 89 Kangaroo Point Road, Kangaroo Point, legally known as Lot 7 DP 9823.
On 29 July 2025 the application was determined by way of consent, subject to conditions. These conditions included a design modification condition which reduced the jetty from 56.7m to a length of 30m and width of 1.25m. It is this condition of consent that is the subject of this appeal, which has been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
A conciliation conference and hearing was arranged by the Court pursuant to s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 18 February 2026. 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.
As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), the Council agreed to the applicant amending the development application to reduce the length of the proposed jetty from 56.7m to 39m. The width of the proposed jetty was deemed inconsequential, and remained as per the original application.
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 identified and explained, and from this I note the following points.

The development application was made with the written consent of the NSW Government Department of Planning, Housing and Infrastructure – Crown Lands and Public Spaces, who are the owners of the land.
The application was adequately notified in June 2025 and no submissions were received.
The application was also designated as integrated development pursuant to s 4.46 of the EPA Act, and accordingly was referred to both the Department of Primary Industries (DPI) and Transport for NSW – Maritime, both of which have no objection to the proposed development. The DPI requested that the application be consistent with supplied General Terms of Agreement, which have been incorporated into the agreed conditions of consent.
The site is mapped as Coastal Environment Area and Coastal Use Area pursuant to ss 2.10 and 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). From the amended application and the parties’ submission, I accept that the Council has considered the matters listed in s 2.10(1), and that the development is designed, sited and will be managed to avoid an adverse impact of the kind referred to in s 2.10(1). Similarly, I accept the Council’s submission that it has considered the matters listed in s 2.11(1)(a) and is satisfied that the development is designed, sited and will be managed to avoid an adverse impact on any of these matters. Pursuant to s 2.12, I accept that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, and finally pursuant to s 2.13, I note that no certified coastal management program applies to the site.
The subject site is zoned C3 Environmental Management under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), however the part of land that falls between the foreshore building line and the mean high water mark (MHWM) is ‘foreshore area’ as defined in the SSLEP. Pursuant to cl 6.9 of the SSLEP, development for the purposes of jetties is permissible with consent, subject to that development satisfying the matters set out at cl 6.9(3). From the parties’ submission and the information within the Statement of Environmental Effects by Harbour Planning dated April 2025 (SEE), I accept that the matters listed in cl 6.9(4) have been considered, and that the matters listed in s 6.9(3) have been satisfied with the proposed development.
The Crown land below the MHWM is zoned W1 Natural Waterways. The proposed jetty and sea stairs fall under the definition of ‘water recreation structure’ pursuant to the SSLEP, which is permitted with consent in the W1 zone. The proposed development, as amended, is consistent with the relevant objectives of this zone.
Pursuant to SSLEP cl 6.1, the site is identified as Class 1 on the Acid Sulfate Soils Map. As the development utilises piles driven into the seabed, with no excavation, no potential to lower the water table, and less than 1 tonne of soil expected to be disturbed, an Acid Sulfate Soils Management Plan is not required, and the provisions of this clause are satisfied.
The site is mapped as ‘Environmentally Sensitive Land’ on the Riparian Lands and Watercourses Map pursuant to cl 6.7 of the SSLEP. From the parties’ submission and the information within the SEE, 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.
The parties submit, and I accept that the urban design matters listed in SSLEP cl 6.16 have been considered and the proposed development is acceptable from an urban design perspective.