VIS Management Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1008 | Case summary | Zoe

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VIS Management Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1008 | Case summary | Zoe

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by VIS Management Pty Ltd (the Applicant), against the deemed refusal of Development Application DA25/0083 (the DA) by Sutherland Shire Council (the Respondent).
At the date of its lodgement on 10 February 2025, the DA sought consent for the demolition of existing structures and construction of a residential apartment building comprising seven storeys, twenty-one residential apartments (with an affordable housing component), and two levels of basement car parking at 17 Urunga Parade, Miranda (the site).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 14 November, 4 and 17 December 2025. I presided over the conciliation conference.
During the conciliation conference, the parties reached agreement to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions raised by the Respondent. These contentions included issues of exceedance of the relevant floor space ratio (FSR) control, an inadequate urban design response to the site and immediate neighbouring properties including the location of the proposed basement entry and its relationship to the northern site boundary, an inadequate landscape design response, unacceptable internal amenity for a number of apartments, inadequate solar access amenity available to a number of apartments, and unacceptable parking and traffic impacts, amongst other contentions.
Agreed design amendments have now been made to improve the proposed building’s relationship to the site and its context. Changes have been made to configure the basement entry within the building footprint and away from the northern site boundary, the landscape design has been amended to introduce an improved configuration of vegetation and the introduction of large canopy trees to the site and adjacent public domain, the primary and secondary building entries have been amended to improve the general streetscape presentation. The design treatment of the upper-most floor accommodating communal open space has been amended to consolidate the roof structure towards the centre of the site and to improve the amenity available to residents using the communal open space. Additional information has been provided to the satisfaction of the Respondent regarding vehicle access to the basement, and other issues such as waste management have been resolved.
These amendments have the effect of reducing the total gross floor area and resolving the Respondent’s contention for exceedance of the relevant FSR development standard.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision 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 amended DA.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
The DA was publicly notified in accordance with the Respondent’s Community Engagement Strategy between 12 and 27 February 2025. A total of five submissions were received by the Respondent.
The parties agree that the amended DA addresses and mitigates against a range of concerns raised by objectors, primarily by improving the streetscape presentation and the improved landscape design response to the northern site boundary.
The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent have satisfactorily considered the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.
The parties agree, and I am satisfied, that the Sutherland Shire Local Environmental Plan 2015 (SSLEP) is the relevant local environmental planning instrument.
Pursuant to cl 2.1 of the SSLEP - Land use zones - the site is zoned E2 Commercial Centre. The amended DA - characterised as residential apartment development - is permissible with consent within the E2 zone.
The parties agree, and I am satisfied, that pursuant to cl 2.3 of the SSLEP - Zone objectives and Land Use Table - the amended DA is consistent with the E2 Commercial Centre zone objectives.
The parties agree, and I am satisfied, that pursuant to cl 2.7 of the SSLEP - Demolition requires development consent - the amended DA proposes demolition of the existing structures occupying the site.
Pursuant to cl 4.3 of the SSLEP - Height of buildings - the site benefits from a development standard for building height of 25m. However, certain provisions set out within Ch 2 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing), dealing with affordable housing, make up to an additional 30% building height available in exchange for the provision of at least 15% of the proposed GFA as in-fill affordable housing.
The amended DA seeks to rely upon 30% additional building height - an amount determined by the quantum of total gross floor area (GFA) proposed as in-fill affordable housing - taking the resultant building height development standard to 32.5m. The amended DA complies with this development standard.
Similarly, and pursuant to cl 4.4 of the SSLEP - FSR - the site benefits from a development standard for FSR of 2:1. Again, certain provisions set out within Ch 2 of SEPP Housing, make up to an additional 30% FSR available in exchange for the provision of a minimum 15% of the resultant GFA as in-fill affordable housing for a period of fifteen years.
The amended DA seeks to rely upon this 30% additional FSR (in exchange for the provision of at least 15% of the proposed GFA as in-fill affordable housing) taking the resultant maximum FSR development standard to 2.6:1, equivalent to 1,837sqm of GFA.
The amended DA seeks consent for a total FSR of 2.595:1, equivalent to 1,837sqm of GFA, complying with the development standard.
The parties agree, and I am satisfied, that all remaining principal development standards of the SSLEP have been met by the amended DA.
The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the SSLEP - Earthworks. The Applicant has provided a Geotechnical Report prepared by Down to Earth and dated 20 December 2024, and a Dewatering Management Plan prepared by Katarina David and dated March 2025, which address the matters set out at cl 6.2(3). The parties agree, and I am satisfied, these matters have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.
The parties agree, and I am satisfied, that pursuant to cl 6.4 of the SSLEP - Stormwater management - the Applicant has provided amended Stormwater Plans prepared by LMW Design Group Pty Ltd and dated 25 November 2025. The amended DA satisfactorily addresses those matters set out at cl 6.4(3) and the proposal is designed to maximise water-permeable surfaces on the site, including on-site stormwater retention, and avoids significant adverse impacts of stormwater runoff on adjoining properties.
The parties agree, and I am satisfied, that pursuant to cl 6.16 of the SSLEP - Urban design—general - the amended DA is agreed to provide a high quality architectural and landscape design that aligns with current planning controls and supports the area’s transition to the desired future character. The amended DA enhances the public domain through thoughtful design and introduces new vegetation to improve the local environment. The amended DA responds to site topography and integrates with the surrounding high-density residential context.
The parties agree, and I am satisfied, that pursuant to cl 6.17 of the SSLEP - Urban design - residential accommodation - the amended DA is agreed to provide a mix of one, two, and three bedroom apartments, including adaptable and liveable designs, while enhancing streetscape quality through integrated architectural and landscape treatments. It provides adequate private open space, a coordinated landscape plan, and four affordable housing units in accordance with provisions of Ch 2 of SEPP Housing.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument.
Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, the parties agree, and I am satisfied, that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated, and that the proposed use of the land is to remain residential in nature.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), a BASIX certificate, No 1780609M, dated 21 January 2025, has been provided with the amended DA. Pursuant to s 2.1(5), the BASIX certificate quantifies embodied emissions attributable to the development. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that SEPP Housing is an additional relevant environmental planning instrument.
Chapter 2 of SEPP Housing deals with Affordable Housing, and the amended DA is subject to the relevant provisions for in-fill affordable housing set out at Pt 2, Div 1.
Pursuant to s 15C of SEPP Housing, I am satisfied that development for the purposes of residential apartment buildings is permitted with consent in the E2 Commercial Centre Zone pursuant to the SSLEP. The affordable housing component proposed within the amended DA is equivalent to 17% of the total FSR (given the provision of four apartments as in-fill affordable housing), and all of the proposed development is located within a defined ‘accessible area’.
Pursuant to s 16(1) of SEPP Housing, the relevant FSR development standard is calculated by adding the base FSR for the land (2:1 pursuant to the SSLEP) to an additional FSR of 30%, based on the proposed affordable housing component.
For the subject site and amended DA, this equates to a total incentive FSR of 2.6:1. It is agreed that the amended DA proposes a total of 1,837 sqm of GFA, which complies with the FSR development standard.
Consistent with s 16(2) of SEPP Housing, the amended DA allocates 318 sqm of GFA as the in-fill affordable housing component, in the form of four apartments (Units G01, 101, 102 and 103), which is equivalent to 17% of the FSR.
Section 19(2) of SEPP Housing provides a number of relevant non-discretionary development standards. The amended DA complies with all relevant non-discretionary development standards.
Section 20 of SEPP Housing sets out certain design requirements. The parties agree, and I am satisfied, that the amended DA is compatible with the desired character of the local area, noting that the operation of SEPP Housing means that the local area is a precinct undergoing transition.
Section 21(1)(a) of SEPP Housing requires that, commencing at occupation certificate, the development will provide the in-fill affordable housing component for a period of 15 years. Further, s 21(1)(b) requires the consent authority (the Court in this instance) to be satisfied that the affordable housing component will be managed by a registered Community Housing Provider (CHP). Accordingly, agreed conditions of consent are imposed requiring these details be confirmed prior to issuance of an occupation certificate.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of SEPP Housing.
Pursuant to the relevant provisions of SEPP Housing, the EPA Reg, the Applicant's architect, Tier Architects (and its nominated architect Mr Nicholas Nasser - NSW registered architect 9457) has prepared a Design Verification Statement, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA.
Additionally, and pursuant to s 145 of SEPP Housing, I am satisfied the DA was referred to the Respondent’s Design Review Panel on 17 April 2025, and its advice considered in the assessment of the amended DA.
Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.
The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.
Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
The Court notes that:
Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant has amended the DA with the approval of the Respondent.
The Applicant has lodged the final amended DA with the Court on 17 December 2025.