Simpson v Sutherland Shire Council

Parties: Glenn Simpson (1st Applicant)
Danielle Simpson (2nd Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
P Vergotis (Solicitor) (Applicants)
J Amy (Solicitor) (Respondent)
Solicitors:
Madison Marcus (Applicants)
Sutherland Shire Council (Respondent)

File Number(s): 2025/452842

Publication restriction: Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Sutherland Shire Council, of Development Application DA24/0483 which seeks consent for alterations and additions to an existing studio to create a secondary dwelling, with the addition of two inclinator stations to the primary dwelling at 22 Goldfinch Place, Grays Point, Lot 7 DP 228088.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 May 2025, and over which I presided. At this conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision 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.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Council agreed to the applicants amending the development application. These amendments included:

5. The addition of building setbacks, and subsequent internal planning amendments;

6. Alteration of the roof form and reduction of overall height;

7. The introduction of a parking space dedicated to the studio;

8. Removal of the proposed inclinator stops; and

9. The imposition of a condition of consent restricting the use of the existing boatshed.

10. 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 in a jurisdictional note. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. The application was adequately notified from 10 September 2024 for 14 days. One submission was received, and the same residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

8. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that the site has historically been used for residential purposes, there is no known contamination on the site nor any history of contaminating activities and subsequently, that the site is suitable for the intended use.

9. The site is mapped as ‘coastal use area’ and ‘coastal environment area’. From the parties’ submissions and the information within the Statement of Environmental Effects (SEE) by Planning Ingenuity dated 3 June 2024, I accept that the development is not likely to cause an adverse impact on any of the items listed in ss 2.10(1) or 2.11(1)(a) of the SEPP RH. I further accept that the proposed development will be designed, sited and will be managed to avoid an adverse impact on the coastal use area and coastal environment area in the ways identified in ss 2.10 and 2.11.

10. The subject site is zoned C3 Environmental Management under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), within which development for the purposes of a dwelling house is permissible with consent. The proposed development is consistent with the objectives of this zone.

11. Pursuant to SSLEP cl 4.3, a maximum building height of 8.5m applies to the subject site. The proposed development complies with this development standard.

12. SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.5:1. The proposed development again complies with this development standard with an FSR of 0.471:1.

13. The site is not identified as a heritage item, nor located within a heritage conservation area.

14. The site is also not identified in the flood planning area.

15. Pursuant to SSLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map and is within 500 metres of Clas 1 land. Based on the parties’ submission and the SEE, I accept that the proposed works are not below 5 metres Australian Height Datum (AHD) not likely to lower the water table below 1 metre AHD.

16. The proposed development includes minor earthworks to position a column, and for stormwater drainage. From this and the parties’ submission, I accept that the matters listed in SSLEP cl 6.2(3) have been considered and the proposed development is acceptable in terms of earthworks.

17. Noting that the proposed development includes alterations and additions to an existing building, from the parties’ submission and the stormwater plan by CPM Engineering dated 3 April 2025. I accept that the proposed development meets the stormwater management requirements of SSLEP cl 6.4.

18. SSLEP cl 6.14 establishes a minimum landscaped area for the site of 40% of the total site area. The proposed development does not meet this minimum standard, with a landscaped area of 291.5m2 or 32.4%.

19. As a result of this breach of the minimum landscaped area requirement, cl 4.6(3) of the SSLEP allows the applicants to request a contravention of this development standard through the submission of a written request. This document must demonstrate that compliance with the landscaped area development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify the contravention. To that end, the applicants have submitted a request prepared by Planning Ingenuity dated 11 April 2025 (the cl 4.6 request). Pursuant to SSLEP cl 4.6, I am satisfied that:

20. The cl 4.6 request demonstrates that compliance with the landscaped area standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the C3 Environmental Management Zone and the landscaped area development standard, notwithstanding the non-compliance. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

21. The cl 4.6 request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

(a) The existing landscaped area is impacted to a minor degree due to a small extension of an existing building. (b) The landscaped area reduction does not impact deep soil areas or high quality vegetation. (c) To have a neutral impact on the existing landscaped area, the existing building would have to be demolished and largely rebuilt, presenting an unsustainable option when compared to the proposed alterations and additions.

20. From the parties’ submission and the amended building design, I accept that the matters listed under SSLEP cl 6.16 Urban design – general and cl 6.17 Urban design – residential accommodation have been considered, and the proposed development is acceptable in urban design terms.

Conclusion

21. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

22. The Court notes:

23. Sutherland Shire Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicants amending Development Application DA24/0483 to include the documents set out in Annexure B.

24. The Court orders:

25. The Clause 4.6 written request with respect to the Landscaped Area development standard pursuant to clause 6.14 of Sutherland Shire Local Environmental Plan 2015, prepared by Planning Ingenuity dated 11 April 2025, is upheld.

26. The appeal is upheld.

27. Development Consent is granted to development application no. DA24/0483 for alterations and additions to an existing outbuilding to create a secondary dwelling at Lot 7, DP 228088 known as 22 Goldfinch Place, Grays Point subject to the conditions set out in Annexure A.

E Washington

Commissioner of the Court

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Annexure A (359 KB, pdf)

Annexure B (103 KB, pdf)

Amendments

05 June 2025

Annexures A and B attached to the judgment.