Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1133

Ozone Cronulla Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1133

Consent was granted because, after amendments, the proposal complied with the applicable height and FSR controls, satisfactorily mitigated view loss where possible, resolved the façade and landscaping contentions, provided acceptable communal open space in the context of a B3 business zone close to Cronulla Park and Cronulla Beach, and provided acceptable building separations notwithstanding a minor non-compliance along the western façade. The Court was satisfied the proposal met the relevant considerations under the EP&A Act, SEPP65, SLEP and SDCP and was in the public interest.

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 18/0323 / Hearing and Determination of Development Appeal, Including Leave to Amend the Development Application and Rely on Amended Plans
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['residential Flat Building' 'view Loss' 'sepp 65 and Apartment Design Guide' 'landscaping and Deep Soil' 'communal Open Space' 'building Separation' 'urban Design' 'development Control Plans']
['environmental Planning and Assessment' 'development Consent' 'land and Environment Court Proceedings'] ['residential Flat Building' 'view Loss' 'sepp 65 and Apartment Design Guide' 'landscaping and Deep Soil' 'communal Open Space' 'building Separation' 'urban Design' 'development Control Plans']

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Procedural Posture

Class 1 Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA 18/0323 / Hearing and Determination of Development Appeal, Including Leave to Amend the Development Application and Rely on Amended Plans

Legal Issues

  1. 1 ["Whether the proposed development's view loss impacts warranted refusal of consent" 'Whether the design of the western façade was acceptable' 'Whether the amended landscaping, including deep soil provision, was acceptable' 'Whether the area and configuration of communal open space were acceptable under the Apartment Design Guide' 'Whether the proposed building separations from adjacent buildings were acceptable' 'Whether consent should be granted having regard to SEPP65, Sutherland Shire Local Environmental Plan 2015, Sutherland Shire Development Control Plan 2015 and s 4.15 of the Environmental Planning and Assessment Act 1979']

Ratio Decidendi

Consent was granted because, after amendments, the proposal complied with the applicable height and FSR controls, satisfactorily mitigated view loss where possible, resolved the façade and landscaping contentions, provided acceptable communal open space in the context of a B3 business zone close to Cronulla Park and Cronulla Beach, and provided acceptable building separations notwithstanding a minor non-compliance along the western façade. The Court was satisfied the proposal met the relevant considerations under the EP&A Act, SEPP65, SLEP and SDCP and was in the public interest.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['The Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans.' "The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the development application as agreed or assessed under s 8.15 of the Environmental...