3GEN Ltd v Sutherland Shire Council [2026] NSWLEC 1209

Catchwords: APPEAL – development application – mixed-use development – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: 3GEN Ltd v Sutherland Shire Council [2026] NSWLEC 1209 Hearing dates: Conciliation conference 7 April 2026 Date of orders: 07 April 2026 Decision date: 07 April 2026 Jurisdiction: Class 1 Before: Creagh AC Decision: The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) , the Applicant is to pay the Respondent ’ s costs thrown away in the agreed amount of $25,000 within 28 day s from the date of these Orders. (2) The appeal is upheld. (3) The Applicant ’ s written request pursuant to cl 4.6 of the Sutherland Shire Local Environment Plan 2015 (SSLEP) to vary the height of building development standard in cl 4.3 of the SSLEP is upheld. (4) Development Application No DA25/0261 for the demolition of existing structures and construction of a mixed-use development including residential, centre-based childcare, medical centre, commercial and retail at 544-550 Box Road, Jannali, NSW 2226 (Lot 2 DP 202711 and Lot 2 DP 209152) is determined by the grant of consent subject to the conditions at Annexure A. Catchwords: APPEAL – development application – mixed-use development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 8.7, 8.15 Land and Environment Court Act 1979 (NSW) , s 34 Environmental Planning and Assessment Regulation 2021 (NSW) ss 27, 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7 State Environmental Planning Policy ( Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy ( Sustainable Buildings) 2022, s 2.1 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 3.23, 3.26 Sutherland Shire Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 4.6, 6.2, 6.4, 6.15, 6.16, 6.17 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Category: Principal judgment Parties: 3GEN Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2025/00263063 Publication restriction: No JUDGMENT COMMISSIONER : This appeal concerns a development application for demolition of existing structures and construction of a mixed-use development including residential, centre-based childcare, medical centre, commercial and retail at 544-550 Box Road, Jannali NSW 2226 (Lot 2 DP 202711 and Lot 2 DP 209152) . Pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), the appeal was commenced against th e deemed refusa l of the application , which was subsequently refused on 16 September 2025 . In exercising the functions of the consent authority in relation to the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The Court was required to arrange a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) , which was held on 7 April 2026. I presided over the conciliation conference. At the conciliation conference , the parties reached an agreement based on amended plans and documents . The Council, as the consent authority, agreed to the amendment of the development application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg ulations) . The amended plans and documents are: Architectural Plans prepared by Gray Puksand Drawing No. Revision Drawing Title Date DA00.00 E Cover Sheet 28 Nov 2025 DA00.01 E Project Summary 28 Nov 2025 DA00.02 C Photomontage 28 Nov 2025 DA01.00 E Survey Plan 28 Nov 2025 DA01.01 F Site Plan – Existing Demolition 28 Nov 2025 DA01.02 G Site Plan - Proposed 22 Jan 2026 DA01.03 E Site Analysis 28 Nov 2025 DA01.04 G Materials and Finishes 12 Feb 2026 DA03.00 I Lower Ground Floor General Arrangement Plan 12 Feb 2026 DA03.01 H Ground Floor General Arrangement Plan 22 Jan 2026 DA03.02 H Level 01 General Arrangement Plan 22 Jan 2026 DA03.03 I Level 02 General Arrangement Plan 12 Feb 2026 DA03.04 H Level 03 General Arrangement Plan 22 Jan 2026 DA03.05 H Level 04 General Arrangement Plan 22 Jan 2026 DA03.06 H Roof General Arrangement Plan 22 Jan 2026 DA10.00 I Elevations – North & East 12 Feb 2026 DA10.01 I Elevations – South & West 12 Feb 2026 DA11.00 G Sections 22 Ja n 2026 DA11.01 G Sections 22 Jan 2026 DA14.00 G GFA Calculation Plan 22 Jan 2026 DA14.01 D ADG Compliance Diagrams 28 Nov 2025 DA14.03 E Shadow Diagrams 28 Nov 2025 DA14.04 E Shadow Diagrams 28 Nov 2025 DA14.05 F Height Plane Diagram 22 Jan 2026 DA14.06 F Childcare Centre Compliance Diagram 22 Jan 2026 DA15.00 E Perspectives 28 Nov 2025 DA16.00 D Signage 28 Nov 2025 DA50.00 D Notification Site Plan 28 Nov 2025 DA50.01 D Notification Elevations 28 Nov 2025 D50.02 D Notification Elevations 28 Nov 2025 Landscape Plans prepared by Space Landscape Designs L-00 E Ground Level Landscape Plan 3 Feb 2026 L-01 G Level 1 Landscape Plan 5 Feb 2026 L-02 G Level 2 Landscape Plan 3 Feb 2026 L-03 C Level 3 Landscape Plan 3 Feb 2026 L-04 F Level 4 Landscape Plan 16 Oct 2025 Clause 4.6 W ritten Variation Request— Building Height, prepared by Patch Planning . 28 Jan 2026 Acoustic Assessment prepared by Pulse White Noise Acoustics . 25 Nov 2026 Traffic Impact and Parking Assessment Study prepared by Traffic Engineering Centre . 11 Feb 2026 Earthworks Management Plan prepared by TCQ Construction. 16 Oct 2025 Geotechnical Letter prepared by Econ Environmental. 13 Aug 2025. BCA Report prepared by DC Partnership. 28 Mar 2025 Air Quality Assessment prepared by SLR . 23 Sept 2025 Revised Detailed Site Investigation prepared by Econ Environmental . 10 Oct 2025 BASIX Certificate No. 1789851M_02 28 Nov 2025 NatHERS Certificate 28 Nov 2025 Car Parking Plan of Management . 3 Mar 2026 Sustainability & Energy Efficiency Report for Proposed Mixed-Use Development prepared by TCQ Construction. 18 Feb 2026 Fire Services Management Plan prepared by TCQ Construction . 18 Feb 2026 Operational Waste Management Plan prepared by TCQ Construction . 14 Jan 2026 The signed s 34 agreement was filed on 7 April 2026. The parties ’ agreement is for the grant of consent to the application, as amended, subject to conditions. The provision of a signed s 34 agreement meets the first condition to the exercise of power and obligation of a commissioner to dispose of the proceedings in accordance with the decision of the parties (this being the test applied by s34(3) of the LEC Act): see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 ( McMillan ) at [51]. The signed s 34 agreement wa s supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to grant consent. Pursuant to s 4.15(1) of the EPA Act, I have considered the content of the Jurisdictional Statement, together with the documents referred to therein , the Class 1 Application and its attachments , and the documents referred to in condition 7 of Annexure A . I am also satisfied that the decision to grant development consent to the amended application , subject to conditions of consent , is one the Court could have made in the proper exercise of its functions, this being the second test applied by s 34(3) of the LEC Act : see McMillan at [4], [51]. I formed this state of satisfaction on the basis that : Landowner ’ s consent was provided by the owner at the time the development application was lodged. The d emolition sought by the application is permissible with consent pursuant to cl 2.7 of the Sutherland Shire Local Environment Plan 2015 (SSLEP) . The proposed mixed-use development, comprising retail, centre-based childcare , medical centre, commercial and residential uses , are uses permissible with consent in the E1 Local Centre zone in which the site is located , as per the SSLEP . The proposed development is consistent with the objectives of the E1 Local Centre zoning. Th e c ontravention of the maximum building height of 20 m set out under cl 4.3(2) of the SSLEP can be justified on the grounds articulated in the written request ( Patch Planners Pty Ltd, 28 January, 2026 ) included in the amended documents pursuant to cl 4.6 of the SSLEP . Part of the proposed roof structures of the building and a section of adjoining sun shading exceed the height control to a maximum of 1.672 m. T he contravention s are confined to the central area of the upper - most floor and set back from all site boundaries . I am satisfied that the A pplicant has demonstrated sufficient environmental planning grounds to justify the breac h. I am also satisfied th e A pplicant has demonstrated that compliance with the standard is unreasonable and unnecessary given the proposal is consistent with the objectives of cl 4.3 of the SSLEP, notwithstanding the non-compliance. The proposal complies with the development standard for a floor space ratio of 2.1:1 , as set out in cl 4.4 of the SSLEP. With reference to the Jurisdictional Statement , the Geotechnical Report (Class 1 Application) and the Geotechnical Letter and Waste Management Plan included in the amended application , I accept that Council have considered the earthworks proposed to facilitate the development in relation to cl 6.2(3) of the SSLEP . With reference to the stormwater management plans submitted as part of the Class 1 Application , I am satisfied in relation to the matters pursuant to cl 6.4(3) of the SSLEP . With reference to the Energy Efficiency Report submitted as part of the Class 1 Application, which is supplemented by a Sustainability and Energy Efficiency Report in the amended application , I accept that Council has considered the energy efficiency, ecological sustainability and maximisation of the useful life cycle of the building in terms of material use and construction techniques pursuant to cl 6.15 (2) of the SSLEP. I accept that g eneral u rban design matters pursuant to cl 6.16 of the SSLEP , and those specific to the residential portion of the development (being two apartments located to the upper most floor) pursuant to cl 6.17 of the SSLEP have been considered by Council . With reference to the Jurisdictional Statement, the Statement of Environmental Effects (SEE) , the Geotechnical Report and stormwater drainage plans submitted as part of the Class 1 Application, I am satisfied of the matters in ss 6.6 (2) and 6.7(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which apply as the site is located in the Georges River Catchment . Ausgrid has provided its consent for the proposed development, subject to conditions , p ursuant to s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T & I) . Pursuant to s 3.23 of the SEPP T & I and the centre-based childcare uses proposed , I accept that Council have considered the proposal in relation to the Child Care Planning Guideline , as per information contained in the Jurisdictional Statement, the SEE, and the assessment included in the Class 1 Application. Pursuant to s 3.26(2) (b) (ii) of the SEPP T & I , I also accept that the indoor and outdoor space requirements for centre-based child care have been considered by Council . Notwithstanding t h at the nearby property at 554 Box Road hosts a commercial dry cleaner, a known source of contamination , p ursuant to s 4.6 of th e S tate Environmental Planning Policy (Resilience and Hazards) 2021 , I have considered the Jurisdictional Statement and reports generated through initial and detailed site investigations , which state the site is suitable for the proposed development . The development application is accompanied by a BASIX certificate (dated 29 November, 2025) i n compliance with the requirements of s 27 of the EPA Regulation s , and based on this, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022. Having reached the state of satisfaction that the decision of the parties is one that the Court could have made in the exercise of its functions, u nder s 34(3) (a) of the LEC Act, I dispose d of the proceedings in accordance with the parties ’ decision . The LEC Act s 34(3)(b) also requires that I set out the terms of the decision in writing. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgement on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders The Court orders that: Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) , the Applicant is to pay the Respondent ’ s costs thrown away in the agreed amount of $25,000 within 28 days from the date of these Orders. The appeal is upheld. The Applicant ’ s written request pursuant to cl 4.6 of the Sutherland Shire Local Environment Plan 2015 (SSLEP) to vary the height of building development standard in cl 4.3 of the SSLEP is upheld. Development Application No DA25/0261 for the demolition of existing structures and construction of a mixed-use development including residential, centre-based childcare, medical centre, commercial and retail at 544-550 Box Road, Jannali, NSW 2226 (Lot 2 DP 202711 and Lot 2 DP 209152) is determined by the grant of consent subject to the conditions at Annexure A. L Creagh Commissioner of the Court 263063.25 Creagh AC (Further Amended Annexure A (459 KB, pdf) ********** Amendments 12 May 2026 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendments are made to typographical errors in respect of the title name and references of two landscape plans identified in Condition 7 of the Conditions of Consent within Annexure A. 21 May 2026 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendments are made to typographical errors in respect to condition 22 in Annexure A. The condition refers to user class 1 at condition 22(4), when it should reference user class 1A. 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: 21 May 2026