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[2025] NSWLEC 1436
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-18
Washington C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Skylim Constructions Pty Ltd ATF 7 Evans Unit Trust (ACN 646469472) v Sutherland Shire Council [2025] NSWLEC 1436
Hearing dates: Conciliation conference on 13 June 2025
Date of orders: 18 June 2025
Decision date: 18 June 2025
Jurisdiction: Class 1
Before: Washington C
Decision: The Court orders:
(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $10,000 within 28 days from the date of this order.
(2) The appeal is upheld.
(3) Development Application DA24/0545 for demolition of existing structures and construction of a multi-dwelling development with associated strata subdivision on land identified as Lot 309 in Deposited Plan 449062, known as 7 Evans Street, Como NSW 2226, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – multi-dwelling development – townhouses – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9, 6.10, 6.11 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sutherland Shire Local Environmental Plan 2015, cll 2.6, 4.1, 4.1E, 4.3, 4.4, 6.1, 6.2, 6.4, 6.14, 6.16, 6.17
Texts Cited: Sutherland Shire Community Engagement Strategy 2023
Category: Principal judgment
Parties: Skylim Constructions Pty Ltd ATF 7 Evans Unit Trust (ACN 646469472) (Applicant)
Sutherland Shire Council (Respondent)
Representation: Counsel:
A Pearman (Applicant)
J Amy (Solicitor) (Respondent)
Solicitors:
Bick & Steele (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2025/442626
Publication restriction: Nil
COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Sutherland Shire Council, of Development Application DA24/0545 which seeks consent for the demolition of existing structures and the construction of a multi-dwelling development comprising five townhouses, with associated strata subdivision at Lot 309 in DP 449062, 7 Evans Street, Como.
These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 June 2025, and over which I presided as Duty Commissioner. 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 consent to the development application subject to conditions.
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 to resolve their contentions.
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 and from this I note the following points.
The development application was made with the written consent of the owner of the land.
The application was adequately notified from 14 October to 29 October 2024 in accordance with the Sutherland Shire Community Engagement Strategy 2023, during which time 15 submissions were received. The amended application was further notified, and 13 submissions were received in response to this. 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.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 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 is suitable for the intended use as it has historically been used for residential purposes, and there is no known contamination on the site nor any history of contaminating activities.
The site is located within the regulated catchment of the Georges River. From the parties’ submission and the amended stormwater plans by Smart Structures Australia (stormwater plans), I accept that the requirements of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10), and is not located within 100m of a natural waterbody (s 6.11).
The subject site is zoned R2 Low Density Residential under the Sutherland Shire Local Environmental Plan 2015 (SSLEP), within which development for the purposes of multi dwelling housing is permissible with consent. The proposed development is consistent with the objectives of this zone.
Subdivision is permitted with consent pursuant to SSLEP cl 2.6. SSLEP cl 4.1 provides a minimum lot size for subdivisions, however does not apply to strata subdivision. The minimum lot size for multi-dwelling housing within the R2 zone pursuant to SSLEP cl 4.1E is 1200m2, which the site meets with an area of 1768m2.
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 with a maximum height of 8.123m.
SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.55:1. The proposed development again complies with this development standard with an FSR of 0.506:1.
The site is not identified as a heritage item, nor located within a heritage conservation area.
The site is also not identified in the flood planning area.
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 Class 1 land. The parties submit, and I accept that the proposed works are not within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum (AHD), and do not propose works below 5m AHD. Accordingly, no Acid Sulfate Soils Management Plan is required.
The proposed development includes minor earthworks. From the sections within the package of amended architectural drawings by Nathalie Scipioni Architects, the amended civil engineering drawings by Smart Structures Australia, and the parties’ submission, I accept that the matters listed in SSLEP cl 6.2(3) have been considered and the proposed earthworks within this development are acceptable.
From the parties’ submission and the stormwater plans, I note that the proposed development provides a landscape area in excess of the minimum 35% of the site area, as well as rain water tanks and on-site detention and, subject to the deferred commencement condition, will avoid any significant adverse impacts of stormwater runoff on adjoining properties. I therefore accept that the proposed development meets the stormwater management requirements of SSLEP cl 6.4.
SSLEP cl 6.14 establishes a minimum landscaped area for the site of 35% of the total site area. The proposed development meets this minimum standard, with a landscaped area of 627.26m2 or 35.55%.
From the parties’ submission and the amended application, 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.
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, and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
The Court notes:
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 DA24/0545 to include the documents specified in condition 6 of Annexure A and the documents set out in Annexure B.
The Court orders:
The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $10,000 within 28 days from the date of this order.
The appeal is upheld.
Development Application DA24/0545 for demolition of existing structures and construction of a multi-dwelling development with associated strata subdivision on land identified as Lot 309 in Deposited Plan 449062, known as 7 Evans Street, Como NSW 2226, is determined by the grant of consent, subject to the conditions of consent at Annexure A.
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Amended Annexure A. 545 KB, pdf
Annexure B.126 KB.pdf
Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), by consent of the parties, correction is made to Conditions 13 and 14 of the conditions of consent. The amended conditions of consent are now ‘Amended Annexure A’.
Skylim Constructions Pty Ltd ATF 7 Evans Unit Trust (ACN 646469472)
Sutherland Shire Council [2025] NSWLEC 1436