64 Ewos Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1338

Catchwords: MODIFICATION APPLICATION — residential apartment development — agreement between the parties — orders Land and Environment Court New South Wales Medium Neutral Citation: 64 Ewos Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1338 Hearing dates: Conciliation conference on 22 April 2026 Date of orders: 10 June 2026 Decision date: 10 June 2026 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Modification Application MA25/0091 and rely upon the amended plans and documents referred to in Condition 6 at Annexure A. (2) The appeal is upheld. (3) Development Consent DA23/0650 is modified subject to the conditions of consent set out at Annexure A. (4) Development Consent DA23/0650, as modified by the Court, is subject to the consolidated conditions of consent set out at Annexure B. Catchwords: MODIFICATION APPLICATION — residential apartment development — agreement between the parties — orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979 (NSW), s 34 Environmental Planning and Assessment Regulation 2021 (NSW), ss 98, 100, 102, 113 State Environmental Planning Policy (Housing) 2021, Chs 4, 6 , s 147, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 4.6 , 6.1, 6.2, 6.4, 6.14, 6.16 Texts Cited: Sutherland Shire Council, Community Engagement Strategy 2022-2026 (2023) NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Category: Principal judgment Parties: 64 Ewos Pty Ltd (First Applicant) Steven Charles Boxall (Second Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Vergotis (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Madison Marcus Law Firm (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2025/416899 Publication restriction: Nil JUDGMENT COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), brought by 64 Ewos Pty Ltd and Steven Charles Boxall (together the Applicant), against the refusal of Modification Application MA25/0091 (the MA) by Sutherland Shire Council (the Respondent). The MA seeks to modify Development Consent DA23/0650 (the parent DA), which granted approval for the demolition of existing structures and construction of a five-storey residential apartment building development, with five lot strata subdivision, at 64 Ewos Parade, Cronulla (the site). Consent for the parent DA was granted by the Respondent on 3 December 2024. The MA was lodged with the Respondent on 28 May 2025, and at that date sought approval to modify the parent DA to introduce additional building height to the approved development, in order to facilitate an additional level allocated to the use of the upper-most Unit 5. 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 22 April 2026. I presided over the conciliation conference. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court granting approval to an amended MA, subject to conditions. Of note, the MA has been amended to resolve the contentions originally pressed by the Respondent, which included concerns that the MA is inconsistent with the reasons given for the grant of consent for the parent DA, the further exceedance of the relevant height of building development standard, detrimental impacts on the visual amenity of the local streetscape and neighbouring properties, and visual privacy and cross viewing impacts associated with the additional height and associated rooftop terrace. Agreed design amendments include making reductions to the extent of the trafficable area associated with the rooftop terrace, the introduction of a greater extent of landscaping to improve visual privacy and mitigate against cross viewing, the integration of the lift core within the proposed additional storey, and other clarifications to allow a complete assessment of the proposal. Together these amendments are agreed to resolve the contentions in this dispute. 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 4.55 of the EPA Act to modify the existing DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg), I am satisfied the amended MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. The parties agree, and I am satisfied, that the MA was publicly notified between 28 May 2025 and 13 June 2025 in accordance with the Respondent’s Community Participation Plan. The Respondent received two submissions in response to this notification, raising concerns including: The MA is inconsistent with the parent DA, which was amended during its assessment to remove an upper storey. The parent DA is already in breach of 16m development standard for building height. The building height should be restricted due to the nature of the single lot and to maintain more attractive appearance from the street. The addition of building height to this site with roof terrace and swimming pool will impede an existing view enjoyed by a nearby neighbour. Proposed vegetation will further inhibit the access to views. Privacy impacts and cross viewing between neighbouring properties. Noise generated from the use of the proposed roof terrace and swimming pool. The parties agree, and I am satisfied, that concerns raised in submission have been given consideration during the conciliation process, with amendments made that mitigate against a number of these concerns. Accordingly, and pursuant to s 4.55(2)(c) and (d) of the EPA Act, I am satisfied that the MA has been appropriately publicly notified and that submissions received have been appropriately considered. Pursuant to s 4.55(2)(a) of the EPA Act, the parties agree, and I am satisfied, that the amended MA remains substantially the same as the parent DA. The amended MA proposes development within largely the same building envelope as the parent DA, apart from relatively minor adjustments to the form and extent of the roof form. The use as a residential apartment building remains the same, and the number of apartments is unchanged by the amended MA, resulting in a development that presents to the surrounding context in a similar manner as the parent DA. Pursuant to s 4.55(3) of the EPA Act, the parties agree, and I am satisfied, that the reasons given by the Respondent for the grant of consent to the parent DA have been appropriately considered by the parties in reaching their agreement in this matter. The parties agree, and I am satisfied, that the Sutherland Local Environmental Plan 2015 (SSLEP) is the relevant local environmental planning instrument. Consistent with the parent DA consent, I am satisfied that the site is zoned R4 High Density Residential pursuant to cl 2.3 of the SSLEP. Development for the purposes of residential apartment development is permissible with consent, and the amended MA is agreed to remain consistent with the zone objectives. The parties agree, and I am satisfied, that the amended MA remains consistent with each of the other relevant jurisdictional prerequisites set out in the SSLEP. Of particular relevance are the following provisions. Clause 4.3 of the SSLEP - Height of buildings - establishes a maximum building height of 16m on the site. However, certain provisions of Ch 6 of State Environmental Planning Policy (Housing) (SEPP Housing) 2021 dealing with l ow and mid rise housing, make additional building height of 17.5m permissible on the site. The proposed lift overrun projects above 17.5m and has been amended and minimised to better integrate with the form of the building. As an MA , there is no requirement to vary the height of building development standard applying cl 4.6 of the SSLEP. Clause 4.4 of the SSLEP - Floor space ratio (FSR) - establishes a maximum FSR for the site of 1.5:1. The amended MA complies with this development standard. Clause 6.1 of the SSLEP - Acid sulfate soils - was assessed at the time the parent DA was granted consent. The MA proposes no additional works that would require further assessment under this provision. Clause 6.2 of the SSLEP - Earthworks - was assessed at the time the parent DA was granted consent. The MA proposes no additional works that would require further assessment under this provision. Clause 6.4 of the SSLEP - Stormwater management - was assessed at the time the parent DA was granted consent. The MA proposes no additional works that would require further assessment under this provision. Clause 6.14 of the SSLEP - Landscaped areas in certain residential, employment, conservation and waterway zones - was assessed at the time the parent DA was granted consent. The MA does not result in reductions to the proposed extent of landscaped area below the required minimum of 30%. Clause 6.16 of the SSLEP - Urban design - general - was assessed at the time the parent DA was granted consent. The MA requires further consideration of matters relating to urban design prior to any grant of consent, including the extent to which high quality design outcomes have been attained, the extent to which the building integrates within the local area, and the extent to which recognition has been given to the public domain. The parties agree, and I am satisfied, that the amended MA adequately addresses these matters. Clause 6.17 of the SSLEP - Urban design - residential accommodation - was assessed at the time the parent DA was granted consent. The MA requires further consideration of various matters relating to urban design prior to any grant of consent. The parties agree, and I am satisfied, that the amended MA adequately addresses these matters. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022. Accordingly, the parties agree, and I am satisfied, that pursuant to s 100(3) of the EPA Reg, the amended MA must be accompanied by a BASIX certificate. The Applicant has provided a BASIX Certificate No. 1399197_04 dated 29 April 2025. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience). Chapter 4 of SEPP Resilience deals with remediation of land. Pursuant to s 4.6 of SEPP Resilience, and consistent with the parent DA consent, the parties agree, and I am satisfied, that the contamination potential of the site was considered as part of assessment of the parent DA. The site is agreed to have been used for residential purposes for its relevant history, and there is no evidence of any potentially contaminating uses. The amended MA does not introduce any additional excavation or earthworks beyond that already approved. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of Ch 4 of SEPP Housing. Relevantly, s 147 of SEPP Housing requires the consent authority to consider a range of matters prior to modifying the parent DA. Accordingly, and pursuant to s 102 of the EPA Reg, the Applicant's architect Innovate Architects Pty Ltd (and its nominated architect Mr Cameron Rice Jones, NSW registered architect 7143) has prepared a Design Verification Statement confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the Design Quality Principles set out at Sch 9 of SEPP Housing and the objectives of P ar ts 3 and 4 of the NSW Apartment Design Guide have been achieved. 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 MA warrants the grant of consent, subject to the imposition of 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 s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW) , the Applicant has amended the MA with the approval of the Respondent. The Applicant has lodged the amended MA with the Court on 22 April 2026. Orders The Court orders that: Leave is granted to the Applicant to amend Modification Application MA25/0091 and rely upon the amended plans and documents referred to in Condition 6 at Annexure A. The appeal is upheld. Development Consent DA23/0650 is modified subject to the conditions of consent set out at Annexure A. Development Consent DA23/0650, as modified by the Court, is subject to the consolidated conditions of consent set out at Annexure B. M Pullinger Acting Commissioner of the Court ********** Annexure A (388 KB, pdf) Annexure B (688 KB, pdf) Architectural Plans(14.8 MB, pdf) 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: 10 June 2026