South Cronulla Property Group v Sutherland Shire Council

Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Texts Cited: NSW Government, Apartment Design Guide, July 2015

Category: Principal judgment

Parties: South Cronulla Property Group (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
M Wright SC (Applicant)
M Staunton (Respondent)
Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers (Respondent)

File Number(s): 2025/197629

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: In August 2023, development consent DA22/0419 was granted for demolition of existing structures on a site, and the construction of a mixed use development with ground floor retail tenancies and residential units located above at 67 Gerrale Street, Cronulla. Relevantly, the terms of the consent also approved communal open space located on the rooftop of the proposed building and rooftop plant (the Original Consent).

2. On 23 April 2024, modification application MA24/0087 was lodged by the Applicant in these proceedings, South Cronulla Property Group (the Applicant), seeking to modify the terms of the Original Consent.

3. Consent for the development has been modified on three other occasions prior to the modification application the subject of these proceedings.

4. On 17 December 2024, the Council approved MA24/1015 comprising changes to all levels, including changes to balcony depths, rooftop lift lobby, BBQ and sink facilities and increased louvre height.

5. On 25 February 2025, the Council approved MA25/0020 comprising changes to waste collection.

6. On 17 September 2025, the Council approved MA25/0122 comprising changes to the southern elevation and an increase in balcony size on levels 4-7.

7. On 6 May 2025, Sutherland Shire Council refused the modification application and the Applicant filed an appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) on 23 May 2025.

8. The matter was initially listed before me for hearing on 1-2 October 2025. However, at the commencement of the proceedings, the parties advised the Court that they had reached in-principle agreement on the matters in dispute and sought the Court to re-allocate the matter under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act).

9. The Court granted the application for the matter to be re-allocated, and arranged a conciliation conference under s 34(1) of the LEC Act between the parties, on 1 October 2025. I presided over the conciliation conference, at which the parties agreed to certain amendments that would resolve the contentions, subject to a short adjournment which was granted.

10. A signed agreement was submitted to the Court on 2 October 2025, in accordance with s 34(10) of the LEC Act.

11. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

13. The parties have identified the jurisdictional pre-conditions that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act to dispose of these proceedings and grant the orders sought. In that regard, I note the jurisdictional preconditions that follow.

Environmental Planning and Assessment Act 1979

14. Section 4.55(2)(a) of the EPA Act enables the Court, as the consent authority, to modify a development consent upon application by the Applicant (or any person entitled to act on the consent) provided the Court is satisfied that the subject development consent, as modified, is “substantially the same” as the originally approved development.

15. The terms of the Original Consent, relevant to these proceedings and cited at [1] included approval for rooftop communal open space, served by stairs and a lift and rooftop plant.

16. I am satisfied that the development to which the consent as modified relates is the same or substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. While those elements identified at [15] are now proposed to be modified, the location and layout of those elements is substantially the same or similar. As such, the amended plans and other documents largely result in development that is consistent with development the subject of the Original Consent.

17. It is relevant to record here that the modification application seeks consent for a change to the height of rooftop plant that was the subject of the Original Consent, later amended by the consent granted to MA24/1015, and limited in height by the terms of condition 2(a)(vii) to RL46.83. The height of ductwork is now proposed to vary between RL 47.88 and RL 48.18.

18. I am satisfied, on the basis of the shadow diagrams prepared by the architect, PBD Architects (DA 601-603), that the location and height of the ductwork as proposed does not impose unreasonable overshadowing on adjoining properties or on the public domain.

19. The height of the lift overrun is also proposed to increase to RL 48.47 for reasons that are described in the jurisdictional statement agreed by the parties, to be due to the selection of a lift car with an interior height of 2800mm, taller than that adopted prior. It is allowance for overrun of the last floor served and clearance over the lift car shown in shop drawings supporting the modification application that results in the height of the lift overrun now sought.

20. So understood, and having had regard to the same shadow diagrams cited at [18], and to the limited footprint of the element, I am satisfied the additional overshadowing resulting from the increase in the height of the lift overrun is substantially the same as that of the element the subject of the original consent.

21. The modification application, lodged on 23 April 2024, was notified by the Council between 2-17 May 2024, in response to which three submissions were received.

22. The modification application was subsequently amended and the Council notified again between 29 January and 12 February 2025, in response to which no submissions were received.

23. I have considered those submissions received in accordance with s 4.55(2)(d) of the EPA Act and note the concerns of noise and odours from the rooftop communal open space are mitigated in two ways:

24. Firstly, by locating the communal open space on the northern side of the rooftop level, with cooking areas that are consistent with the Original Consent

25. Secondly, by the barrier formed by the lift overrun and plant enclosure to the south.

26. Thirdly, by the recommendation and conclusions contained in the Rooftop Acoustic Review prepared by Pulse White Noise Acoustics dated 29 September 2025, and a Memo of the same author dated 2 October 2025 that are incorporated into the agreed conditions of consent.

27. Next, in respect of concerns expressed by the Cronulla Community Precinct Association as to the impact on the solar access to the adjoining building to the south, I note that the height and effect of the lift overrun is dealt with at [19]-[20].

28. The Court has consistently held that s 4.55 is a complete source of power (SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31]) such that a contravention of a development standard at cll 4.3, or 4.4 for that matter, of the Sutherland Shire Local Environmental Plan 2015 (SSLEP) is not required to be justified within terms at cl 4.6 of the SSLEP.

29. Finally, concern is expressed by a resident in the adjoining building to the north, 59-65 Gerrale Street, as to what is described as ‘change of use’ in the rooftop communal open space, for that portion that was communal and is now proposed to be for private use serving Unit 801. I accept the use to be similar if not the same, and where all open space on the rooftop is subject to limitations on hours of use and use of amplified music, by the terms of condition 57.

Environmental Planning and Assessment Regulation 2021

27. The parties agree that the relevant provisions of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation) have been considered and are satisfactorily addressed.

28. The Modification Application has been made by the owners of the site, who provide written consent.

29. The modification application is accompanied by a BASIX Certificate (Cert No 1278560M_07 dated 01 October 2025) prepared by Efficient Living Pty Ltd in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP), and consistent with the provisions at s 100(3) of the EPA Regulation.

30. Embodied emissions are quantified in the BASIX Certificate, and supported by an assessment in accordance with NatHERS such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

31. An amended design statement has been provided in accordance with s 102 of the EPA Regulation. The statement, authored by Mr Paul Buljevic (Arch Reg No 7768) attests that the development, as modified, complies with the design quality principles and objectives in Parts 3 and 4 of the Apartment Design Guide, and that the modification does not diminish or detract from the design quality of the original development, or compromise the design intent of the original development. I note the design statement does not address the increase in height now proposed. However, a letter prepared by Mr Richard Webster of Team2 Architects dated 14 May 2025 (Team 2 Letter) explains that the lift overrun the subject of the Original Consent was insufficient to serve the rooftop communal open space. I understand from the parties that the Team 2 Letter, when read with those reasons set out at [19], provides the basis for the RL for which consent is now sought, and on which the parties are agreed.

32. As Mr Buljevic attests to being the designer of the development for which the Original Consent was granted, I am satisfied no referral is required to a design review panel, pursuant to s 146(2) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and I am satisfied the design statement otherwise conforms to the requirement of the s 102 of the EPA Regulation and permits the Court to consider those matters required of it by ss 147 and 148 of the Housing SEPP.

Sutherland Shire Local Environmental Plan 2015

33. The site is located in an area by the SSLEP designated E2 Commercial Centre, in which development for the purposes proposed are permitted with consent, where consistent with the following objectives for development in the E2 zone:

• To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

• To encourage investment in commercial development that generates employment opportunities and economic growth.

• To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

• To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

34. A summary of the gross floor area (GFA) calculations appears on Architectural plan DA 500. The floor space ratio resulting from the GFA is 3.01:1, which exceeds the maximum FSR of 3:1 permitted by the relevant standard at cl 4.4 of the SSLEP. I note an assessment of the proposal against the objectives of the FSR standard is undertaken in the Statement of Environmental Effects prepared by Ingenuity Planning, and that for reasons identical to those at [25], contravention of the FSR standard is not required to be justified under cl 4.6.

35. The site is located in close proximity to item of local heritage significance. While the Statement of Environmental Effects prepared by Ingenuity Planning does not consider the effect of the modification as proposed, the parties advise, and I accept, that the heritage significance of those items is not adversely affected in terms set out at cl 5.10 of the SSLEP.

Conclusion

36. 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.

37. 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.

38. The Court notes that:

39. That Sutherland Shire Council, as the relevant consent authority, has approved, under s 113 of the EPA Regulation, the amendment of modification application No. MA24/0087 to include the following:

| 1 | Amended Architectural Plans prepared by PBD Architects (up to Rev H) • DA111 – Level 8 Plan (Rev G) • DA112 – Terrace Plan (Rev G) • DA113 – Roof Plan (Rev H) • DA200 – South Elevation (Rev H) • DA201 – North Elevation (Rev H) • DA202 – West Elevation (Rev H) • DA203 – East Elevation (Rev H) • DA300 – Section A (Rev E) • DA301 – Section B (Rev E) • DA500 – GFA Calculation (Rev D) • DA501 – Height Limit (Rev D) • DA601 – Shadow Diagram – 21st June – 9:00am (Rev F) • DA602 – Shadow Diagram – 21st June – 12:00pm (Rev F) • DA603 – Shadow Diagram – 21st June – 3:00pm (Rev E) • DA604 – Sun Eye Diagrams – 9:00am to 12:00pm (Rev C) • DA6055 – Sun Eye Diagram – 1:00pm to 3:00pm (Rev C) | 1 October 2025 | | 2 | Schedule of Modifications (approved development vs proposed modifications) prepared by PBD Architects | 1 October 2025 | | 3 | Schedule of Amendments (refused plans vs amended plans) prepared by PBD Architects | 1 October 2025 | | 4 | (updated) Design Verification Statement prepared by PBD Architects | 1 October 2025 | | 5 | Amended Landscape Plans (Rev S) prepared by Site Design + Studios • L-08: Roof Plan • L-08.1: Roof Planting Plan • L-10: Notes and Specifications | 29 September 2025 | | 6 | Rooftop Acoustic Review prepared by Pulse White Noise Acoustics Pty Ltd | 29 September 2025 | | 7 | Mechanical Services Roof Plans prepared by Two MS • M-14 – Mechanical Services Roof Terrace Layout (Rev I) • M-15 – Mechanical Services Roof Layout (Rev I) | 29 August 2025 | | 8 | NatHERS and BASIX Assessment Report prepared by Efficient Living • BASIX Certificate No. 1278560M_07 | 1 October 2025 |

2. The Applicant filed the documents listed above with the Court on 2 October 2025.

Orders

39. The Court orders that:

40. The appeal is upheld.

41. Development consent no. DA22/0419 is modified in the terms set out in Annexure A.

42. Development consent no. DA22/0419 as modified by the Court is Annexure B.

T Horton

Commissioner of the Court

Annexure A (205 KB, pdf)

Annexure B (539 KB, pdf)

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