Wicks v Sutherland Shire Council

Category: Principal judgment

Parties: Kylie Wicks (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
J Reid (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Messenger Cole Pty Ltd (Respondent)

File Number(s): 2025/335246

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of development application DA25/0028 for alterations and additions to an existing dwelling and associated works (DA) at 19 Mitchell Road, Cronulla (Lot 97 in DP 17001) (site).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg 2021) to the Applicant amending DA25/0028 (amended DA) in accordance with the documents listed below:

3. Amended Clause 4.6 Request prepared by Mr McDonald of SJB Planning dated 17 February 2026;

4. The following amended plans prepared by Innovate Architects dated 17 February 2026, Revision D, Job Number 2801.2:

| 01 | Site plan | | 02 | Floor plans | | 03 | Floor plans | | 04 | Elevations & external finishes schedule | | 05 | Sections and height blanket | | 06 | Calculations |

3. The amendments primarily include:

4. Increased setbacks of the third storey from Sanderson Street and Mitchell Road and overall reduction in size of the third storey.

5. Roof further setback from Mitchell Street over the first floor.

6. Lower finished floor level of the rear patio.

7. Internal amendments.

8. 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 16 and 17 February 2026. I presided over the conciliation conference.

9. The parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the amended DA and granting development consent to the amended application subject to conditions of consent.

Jurisdictional Prerequisites

6. As part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there “are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement” and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65].

9. I have carried out the required jurisdictional check (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [202]). For the reasons set out below, 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.

10. Whilst the DA was determined by the Local Planning Panel, Council is the nominated consent authority for these Class 1 proceedings.

Owner’s consent

11. I accept the parties’ agreement that owner’s consent accompanied the DA as the Applicant is the owner (s 23(1) of the EPA Reg).

Community notification and objections

12. Council notified the DA between 24 January 2025 to 10 February 2025. Six submissions were received. The Court heard oral submissions from two objectors who raised concerns in relation to trees/landscaping, visibility of the intersection, height and precedent.

13. Different from the consideration of the Court at a hearing, as the parties have entered into an agreement, the Court’s role is limited to ensuring that there is power to grant consent, and not to considering the merits of the issues raised (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 at [217]).

14. In reaching agreement, the concerns raised have been considered and where possible, have been addressed through amendments made to the proposal.

Sutherland Local Environmental Plan 2015

15. The site is zoned R3 Medium Density Residential under the Sutherland Local Environmental Plan 2015 (SLEP). The proposed development for alterations and additions to a dwelling house is permitted with consent and regard has been had to the objectives of the zone.

16. The parties agree and I accept that the following applicable provisions are met:

17. Clause 2.7 permits demolition with consent.

18. Clause 4.3 sets a maximum building height of 9m. The amended architectural plans prepared by Innovate Architects Issue D (architectural plans) demonstrate the amended DA exceeds that maximum height. At its highest point, as measured from ground level (existing) around the basement, the proposal is 12.305m. Pursuant to cl 4.6, the amended DA is accompanied by an amended written request to vary cl 4.3 prepared by SJB Planning dated 17 February 2026 (written request). I accept that the Applicant, through the written request, has demonstrated that:

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances as the objectives of the development standard are achieved notwithstanding the non-compliance (cl 4.6(3)(a)), and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard. In particular, that the historical excavation, existing basement and levelling of each floor causes the height variation, which are all specific to these circumstances and the site (cl 4.6(3)(b)).

3. Clause 4.4 floor space ratio (FSR) applies to the site, allowing a maximum of 0.7:1. The architectural plans demonstrate that the amended DA proposes a compliant FSR of 0.679:1.
4. Clause 6.1 acid sulfate soils applies, however the proposed works are not those specified in the table and a management plan is not required.
5. Clause 6.2 earthworks applies to the proposed development. I accept from the architectural plans and conditions of consent that the controls have been adequately considered.
6. Clause 6.4 stormwater management applies to the development. On the basis of the architectural plans, landscaping and use of the existing stormwater infrastructure to discharge to Sanderson Street and Mitchell Road, the amended DA demonstrates that it minimises stormwater impacts on site and on adjoining sites, maximises permeable surfaces, and minimises impacts on the public drainage system. I accept that the provisions of cl 6.4 are satisfied.
7. Clause 6.13A green grid links appears to apply to the site, though the submissions indicate that this may be a mapping anomaly. In any event, I accept that the provisions of the clause have been satisfied in that:

(a) Canopy trees are retained and increased. (b) There are no obstructions to pathways or cycleways for pedestrians and cyclists.

8. Clause 6.14 landscaped areas in certain residential zones applies. The landscape area map requires a minimum of 30% landscaping on site. The architectural plans demonstrate that the proposed landscaping is above 30%.
9. Clauses 6.16 and 6.17 regarding urban design apply. I accept that the parties have considered all the provisions in reaching agreement, and that both clauses have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

17. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP) applies as the site is located in the Georges River Water Catchment. I accept the agreement of the parties, as detailed in the Council Report dated 15 July 2025, jurisdictional statement and demonstrated by the architectural plans, that the provisions of Ch 6 have been satisfied. I accept that the proposed development will have no more of an impact than the existing development on water quality, that the development will not have adverse impacts on the environment (as referred to in the SEPP) and that the proposed stormwater management system will adequately manage water on site and discharge water into the existing drainage infrastructure. I accept that the proposal will have no impact on the nearby waterbody.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The amended DA does not involve a change of use and has a history of residential use. There is no evidence of prior contamination in Council’s records. Accordingly, the parties agree, and I accept that the provisions of s 4.6 of SEPP RH have been adequately addressed.

State Environmental Planning Policy (Sustainable Buildings) 2022

19. The parties agree and I am satisfied that the amended DA is accompanied by a BASIX Certificate that meets the provisions of the State Environmental Planning Policy (Sustainable Buildings) 2022, including embodied emissions. The proposal has been amended since the issue of the certificate. I accept that the proposal is not materially different and does not require an amended BASIX Certificate (s 37(5) of the EPA Reg).

Heads of consideration

20. On the basis of the documentation accompanying the Class 1 appeal and the jurisdictional statement, I accept that the heads of consideration of s 4.15 of the EPA Act have been considered.

Conclusion

21. 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.

22. 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.

23. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

24. The Court orders:

25. The appeal is upheld.

26. Development consent is granted to development application DA25/0028, as amended, for alterations and additions to an existing dwelling at 19 Mitchell Road, Cronulla, subject to conditions at Annexure A.

S Porter

Commissioner of the Court

Annexure A (279 KB, pdf)

**********