Sutherland District Trade Union Club Ltd v Sutherland Shire Council

Land and Environment Court (NSW)|2025-01-29

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Sutherland Shire Local Planning Panel of development application no DA22/0957 (DA). Sutherland Shire Council (Council) is the respondent by virtue of s 8.15(4) of the EPA Act.
Sutherland District Trade Union Club Ltd seeks consent for alterations and additions to the existing multi-storey car park associated with Sutherland District Trade Union Club Limited at 57 Manchester Road, Gymea, legally described as Lot 202 in DP 845467 (site).
The applicant sought and was granted leave to rely on amended plans and documents on 10 September 2024 and on the first day of the hearing. The DA proposes:

Gymnasium: construction and use of a 24-hour operation gym at the eastern end of the upper deck of the car park.
Roof and photovoltaic panels (PVs): construction of a new car park roof, with PVs over this and the new gym (700 x 500W panels).
Car parking: installation of 3 electric vehicle (EV) spaces, with a 15m2 battery storage room. Removal of 39 car parking spaces, taking the total provided on site to 552.
Alterations to car park facades, new water tanks and ancillary works.

The issues for the Court to determine are: 1. Whether the applicant's requested variation to the height development standard is well founded and worthy of support. 2. Whether the applicant's requested variation to the floor space ratio development standard is well founded and worthy of support. 3. Whether the built form and design is acceptable. 4. Whether the development would result in result in adverse and unreasonable view loss impacts to neighbouring properties.
The DA was notified by Council. One submission was received raising concerns about view loss. Communications between Council and the submitter concluded with an email from the submitter stating that their concerns had been addressed and they were happy for the development to proceed.

Site and setting

For this and the following descriptive sections I rely on Council's amended statement of facts and contentions (SOFAC) (Ex 1). The site has an area of 13,050m2 and frontages of approximately 250m to Kingsway and 40m to Manchester Road. Figure 1. Site, with the location of proposed works in blue (source: Ex , p 5).
The site is occupied by the Tradies Gymea Club (Tradies), with the club building in the centre. The car park which is the subject of the DA is at the western end, shown in blue. The site slopes down to the north, such that the lowest level of the car park is approximately at ground level to the north, and the next level is approximately at the level of Kingsway.
The carpark is screened by trees along much of the Kingsway frontage.
To the immediate north of the site is the Gymea Miranda Bowling and Sports Club (Bowling Club), at Lot 203 in DP845467. Reciprocal rights for parking for Tradies and the Bowling Club exist over car parking areas on Lot 202 and Lot 203, including the multi-storey car park which is the subject of the DA. Vehicle access to the Bowling Club is via the Tradies crossing on Kingsway, a classified road.
Surrounding development is predominantly residential, including detached single storey dwelling houses, newer medium density development and residential flat buildings. Diagonally across from the site on Kingsway is a 6 storey mixed use development. Also opposite the site on Kingsway are street plantings within heritage item 1506 (including Eucalyptus Racemosa and Pilularis).
The site is in close proximity to Gymea village. Gymea train station is 450m from the site.

Heading: Relevant planning controls

The site is zoned RE2 Private Recreation under Sutherland Shire Local Environmental Plan 2015 (SSLEP). The DA is permissible with consent.
The site is subject to a height control of 9m and a floor space ratio (FSR) control of 0.45:1 under cll 4.3 and 4.4 of SSLEP.

Heading: Expert evidence

The applicant relied on the expert evidence of Justin Pindar (traffic) and Deborah Laidlaw (planning). Council relied on the expert evidence of Bruce Powe (traffic) and Jeff Mead (planning).
The traffic experts prepared a joint report (Ex 3) and gave oral evidence. They agreed that the DA proposes sufficient parking to cater for (at a minimum) the 85th percentile parking demands associated with the proposed gym and any reasonably anticipated increase in trading levels at Tradies and the Bowling Club.
Mr Powe's opinion is that there is utility in retaining the 39 parking spaces proposed to be removed, notwithstanding that the 85th percentile requirement is satisfied. Mr Powe acknowledged that Council's Local Strategic Planning Statement seeks to reduce the provision of parking spaces and to increase the share of trips made by public and active transport. This is consistent with the Sutherland Development Control Plan 2015 (SDCP), the Transport for NSW Guide to Traffic Generating Developments and the Austroads Guide to Traffic Management Part 11.
The planning experts prepared a joint report (Ex 2) and gave oral evidence. They agreed on the following:

The site is complex with significant variation in levels. At its highest, the proposed development would be 125mm lower than the top of the existing Tradies building.
The existing car parking structure exceeds the 9m height control. It has a maximum height of 11.65m to the lift and 15.4m to the lighting on the top of the upper deck, taking into account prior excavation.
When measured at the level of the footpath, rather than the lowest point of prior excavation, the highest part of the proposed development is 9.6-9.8m.
There are no overshadowing impacts and the amendments reduce view impacts.
The existing structure is not compliant with the planning controls and is, at best, "underwhelming".
The DA improves on the current building including through façade screening, the new colour palette and removal of the rooftop light poles. However, Ms Laidlaw is of the opinion that the height, bulk and scale of the building remain excessive.
If consent is to be granted for the DA, the awning over the gym would be improved by relocating it to above the glass line, extending 1m to the south and east. I note that these changes are incorporated in Condition 5.

Ms Laidlaw's opinion is that the DA may impact the framing of the view to the Captain Cook Bridge, and neighbours may not fully understand what is proposed.
Below I address the issues in dispute, noting that these involve jurisdictional findings. I then address the remaining jurisdictional preconditions to the grant of consent under the relevant environmental planning instruments.

Contravention of height development standard

The proposal does not comply with the 9m height limit applying to the land under cl 4.3 of SSLEP. At its highest point, the proposed development would be approximately 12.235m. This exceeds the development standard by 3.235m (36%).
The applicant has submitted a written request under cl 4.6(3) of SSLEP seeking to justify the contravention of the development standard. The latest request, addressing the amended proposal, was prepared by Planning Ingenuity and dated 4 December 2024 (Ex C). This seeks to justify the contravention of the height development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard.
As to the first matter, the request contends that compliance with the height development standard is unreasonable or unnecessary because the objectives are achieved notwithstanding the noncompliance. The objectives of the height control are: (a) to ensure that the scale of buildings - (i) is compatible with adjoining development, and (ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and (iii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion, (d) to ensure that the visual impact of buildings is minimised when viewed from adjoining properties, the street, waterways and public reserves, (e) to ensure, where possible, that the height of non-residential buildings in residential zones is compatible with the scale of residential buildings in those zones, (f) to achieve transitions in building scale from higher intensity employment and retail centres to surrounding residential areas.
With regard to objective (a), the request notes that the DA remains compatible with existing buildings on the site and with the streetscape. The roof is lower than the existing light poles, similar in height to the existing lift, designed to be set back from the street and carefully located to minimise impacts on residential development. The height of the development at the footpath level reflects the natural ground level, and the proposal reads as below the 9m height if that is extrapolated from the natural footpath level as shown in Figure 2 of the written request.
The desired future character of the locality is not defined in SSLEP. In Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115, Preston CJ at [54] and [62]-[63] held that desired future character is subjective and can be set by the existing, recently approved and proposed buildings on the site and within the neighbourhood. This is eclectic and includes the Tradies Club, the six storey mixed use development across the road from the DA and new medium density development which is replacing detached dwellings in the R3 zoning which covers much of the surrounding area. The DA would be more compatible with the locality through its architectural treatment. The proposal would have no significant adverse impact on the natural setting of the locality. The existing vegetation on the site would be maintained and continue to screen the car park.
The request contends that objective (b) is achieved because the development would not increase overshadowing nor reduce solar access to neighbouring properties or the public domain. This is demonstrated in the shadow diagrams submitted with the DA.
The request contends that objective (c) is achieved because the DA will have no significant impacts on the amenity of neighbouring properties or the public domain, and will not affect the sharing of views. The proposal has been modified to reduce view impacts to a neighbouring property, and the owner of that property supports the amended proposal.
The request contends that objective (d) is achieved because the height variation is visually mitigated by the higher level of the public domain adjacent to the development. The significant vegetation on the site and in the adjacent reserve will continue to screen the development, as would the existing Tradies Club and Bowling Club buildings.
The request states that objectives (e) and (f) do not apply as the site is not in a residential zone nor adjacent to any retail or employment zones.
As to the second matter required to be demonstrated, the request contends that there are sufficient environment planning grounds to justify contravening the development standard. Thirteen grounds are identified, which I summarise below: 1. The proposed gym would occupy "dead" space, parking which is surplus to requirements as agreed by the traffic experts. 2. The proposal promotes activity, sustainability, surveillance, sustainable use of an existing structure, orderly and economic use of land. 3. The addition of the gym improves the compatibility of the structure with the locality by presenting as a habitable area. 4. The existing development exceeds the height control and would require demolition to achieve compliance. 5. The existing ground level reflects prior excavation and not the natural topography. 6. Nearby properties have much greater height limits, including 16 to 20m. 7. There are no significant adverse overshadowing, visual privacy, acoustic privacy, or view impacts.
The request also contends that the proposed development would be in the public interest because it is consistent with the objectives of the height development standard and with the objectives of the RE2 zone. The objectives of the zone are: • To enable land to be used for private open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes. • To ensure the scale, density and form of development reflects the nature of the recreational use of the land and is compatible with the surrounding urban form and natural setting.
The request contends that the DA is consistent with the first two objectives because it will increase and enhance recreational opportunities through the addition of the gym, and it will improve the sustainability of existing club use. The request contends that the DA is consistent with the third objective because the built form will be upgraded and will continue to be screened by planting. The request contends that the DA is consistent with the fourth objective because the scale and form remain consistent with the site and surroundings.
I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the RE2 Zone, for the reasons given in the request.
I have considered the planning principle for assessment of height and bulk in Veloshin v Randwick Council [2007] NSWLEC 428 and have concluded that the answers to the relevant questions point toward the grant of consent. From the primary frontage to Kingsway, the DA would read as compliant with the height control and would look appropriate in its context. I note the DA proposes alterations and additions which the experts agree improve on what is existing.

Contravention of FSR development standard

The proposal does not comply with the 0.45:1 FSR control applying to the land under cl 4.4 of SSLEP. The proposed gym adds 540sqm of gross floor area (GFA), increasing GFA to 9,220sqm and the FSR to 0.706:1. The existing FSR for the site is 0.665:1.
The applicant has submitted a written request under cl 4.6(3) of SSLEP seeking to justify the contravention of the development standard. The latest request, addressing the amended proposal, was prepared by Planning Ingenuity and dated 4 December 2024 (Ex D). There is significant overlap with the written request in relation to height.
The request contends that compliance with the height development standard is unreasonable or unnecessary because the objectives are achieved notwithstanding the noncompliance. The objectives of the FSR control are: (a) to ensure that development is in keeping with the characteristics of the site and the local area, (b) to ensure that the bulk and scale of new buildings is compatible with the context of the locality, (c) to control development density and intensity of land use, taking into account - (i) the environmental constraints and values of the site, and (ii) the amenity of adjoining land and the public domain, and (iii) the availability of infrastructure to service the site, and (iv) the capacity of the road network to accommodate the vehicular and pedestrian traffic the development will generate, and (v) the desirability of retaining the scenic, visual, and landscape qualities of the area.
The request contends that objectives (a) and (b) is satisfied for reasons similar to those outlined in respect to objective (a) of cl 4.3, and also because surrounding land includes FSR controls of between 0.1:1 and 2:1. The DA is consistent with the density envisaged for the locality. The additional floor area is contained within the existing building footprint, and the works will improve the appearance of the site.
The request contends that objective (c) is satisfied because the development maintains and enhances the environmental values of the site and will not impact on the amenity of adjoining land or the public domain. The site is well served by public transport, connected to all services and the parking report confirms that traffic can be accommodated by the existing road network. The DA will improve the scenic, visual and landscape qualities of the area.
The request contends that there are sufficient environmental planning grounds to justify contravening the development standard. Fifteen grounds are provided, including several of the grounds provided to support the written request to vary the height control. Additional grounds include, in summary: 1. Surrounding land has much higher FSR controls. 2. The DA offers a public benefit in that the external appearance of the site will be upgraded and contribution to the streetscape will be improved. 3. The new roof and solar panels do not increase GFA. Enclosing the carpark without the gym would have a similar presentation without the benefit of the new gym use.
The request also contends that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard and with the objectives of the RE2 zone, the latter for the same reasons as outlined in the request to vary the height control.
I am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6 (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the RE2 Zone, for the reasons given in the request.

Built form and urban design

Clause 6.16 of SSLEP and related provisions in SDCP require consideration of a range of urban design matters. Many of Council's contentions on these matters were resolved prior to the hearing, or addressed above in relation to height and FSR. The main issues still in contention relate to design quality and car parking. Clause 6.16(1)(f) relates to views, which are discussed below.
As to design quality, the applicant submits that the area includes a diverse range of typologies and uses, including Tradies, with which the DA is consistent and compatible. The experts agree that the proposed development involves significant aesthetic improvements. Mr Mead's opinion is that the DA is consistent with cl 6.16.
Council submits that the area is characterised primarily by low and medium density residential development, to which the DA is unsympathetic. The improved colour palette is achieved by removing the unauthorised blue paint and returning to the neutral palette previously approved for the existing development.
I have considered the matters required under cl 6.16. I accept that the area includes a diverse range of typologies and uses, and that the DA is compatible with these. I have concluded that the façade upgrades and conversion of car parking to more active uses improve the presentation of the building, the urban design quality of the development and the contribution to the streetscape.
On car parking, the experts agree and I am satisfied that the DA meets the requirements of the controls. The DA is supported by a Traffic and Parking Impact Assessment prepared by McLaren Engineering (Ex A, tab 4).

View impacts

Given I am satisfied that the DA meets the objective to minimise impacts on views, it follows that I am not persuaded that view loss is a reason for the DA to be refused.
The applicant submits that there are no unreasonable impacts on views. The concerns of the submitter regarding views were resolved by lowering the rooftop PVs, as shown in the view loss photomontages prepared by David Murgatroyd dated 16 August 2024 (Ex B, tab 14). The amendments focus particularly on water views from the living areas, consistent with the planning principle set by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140. I accept the applicant's submission that the controls do not require a view sharing assessment in this case. No submitter registered to speak at nor attended the hearing.
Notwithstanding the lack of opposition to the proposal, Council says that the DA impacts the framing of views across the carpark. While acknowledging the resolution of the submitters' concerns, Council says that there may be other units which are also affected. Council has not identified any other units which are affected, despite a specific request.
I accept the applicant's submissions on views and am satisfied that there are no unacceptable impacts on views as a result of the DA. I note that Ms Laidlaw was concerned that the view is retained by a slim margin, and that similar arguments were rejected by this Court in Trinvass Pty Ltd v City of Sydney Council [2018] NSWLEC 1691. I note also the design has been subject to verification and testing, and that condition 33 minimises the prospect of deviation from approved heights.

Other jurisdictional preconditions to the grant of consent

Before turning to the merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the determination of the development application by the grant of consent have been met.
Owners' consent has been provided in accordance with s 23(1) of the Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Resilience and Hazards) 2021

Consideration has been given as to whether the subject site is contaminated as required by s 4.6. There is nothing to suggest that the land is likely to be contaminated and the proposal involves no excavation which could disturb potentially contaminated land. The requirements of s 4.6 are met.

State Environmental Planning Policy (Transport and Infrastructure) 2021

Section 2.119 applies as the site has a frontage to a classified road, Kingsway. The DA is not traffic generating development (s 2.122) so referral to Transport for NSW is not required.
Section 2.119(2) specifies matters as to which the consent authority must be satisfied before granting consent. I have considered those matters, the Traffic and Parking Impact Assessment (Ex A, tab 4) and the advice of the parties' experts. As required by s 2.119(2), I am satisfied the proposed vehicle access is appropriate, that the proposed development will not adversely affect the safety, efficiency and ongoing operation of the classified road and that appropriate measures have been taken to ameliorate potential traffic noise and vehicle emissions within the development from the road.

Sutherland Shire Local Environmental Plan 2015

Clause 5.10 applies because the site is located in the vicinity of local heritage items listed in Sch 5. In accordance with cl 5.10, I have considered the relevant matters including the statement of environmental effects prepared by Planning Ingenuity dated 2 August 2022 (Ex A, tab 3) which concludes that the addition of the green wall and native plantings mean that the DA would have a positive impact on heritage values. The requirements of cl 5.10 are met.

Heading: Merits of the proposed development

On the matter of merit, the proposal is consistent with the planning controls and has no unacceptable environmental consequences. The DA would improve amenity through the new gym and façade upgrades, while minimising impacts. All trees on the site are preserved. The introduction of PVs, water tanks and EV charging will improve sustainability, and the reduction in carparking at a site in close proximity to a train station is consistent with state and local transport policies. The proposal is in the public interest.

Conclusion

For the reasons outlined above, I am satisfied that the proposal warrants the grant of consent in accordance with the agreed conditions.

Orders

The Court orders: 1. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Sutherland Shire Local Environmental Plan 2015, prepared by Planning Ingenuity and dated 4 December 2024, is upheld. 2. The written request seeking to justify the contravention of the floor space ratio development standard at cl 4.4 of Sutherland Shire Local Environmental Plan 2015, prepared by Planning Ingenuity and dated 4 December 2024, is upheld. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. DA22/0957 for alterations and additions to the existing multi-storey car park associated with Sutherland District Trade Union Club Limited at 57 Manchester Road, Gymea, subject to the conditions of consent in Annexure A. 5. The following exhibits are returned: E, F, J, M, O, 5-8, MFI-1.

Amendments 17 February 2025 - Reuploaded Annexure as per Rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) due to wrong date. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2025

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