Case Summary: Shelby Brothers Pty Ltd v Sutherland Shire Council [2026] NSWLEC 1247
In a recent Class 1 development appeal, the NSW Land and Environment Court has approved an attached dual occupancy development at 13 Waterview Avenue, Caringbah South, following a successful conciliation conference between the applicant and Sutherland Shire Council.
The case demonstrates the effectiveness of the Court’s facilitated negotiation process in resolving complex residential development disputes without the need for a full merit hearing.
Background of the Dispute
The applicant, Shelby Brothers Pty Ltd, lodged Development Application DA25/0497 with Sutherland Shire Council on 9 September 2025, seeking consent for:
Demolition of existing structures on the site;
Construction of an attached dual occupancy (two dwellings);
Swimming pools and basements;
Landscaping works; and
Strata title subdivision.
The Subject Land is Lot 18 in Deposited Plan 11262, also known as 13 Waterview Avenue, Caringbah South, with a total area of 733.3 square metres.
The Development Application was publicly notified between 11 and 25 September 2025, attracting three submissions from local residents raising concerns about privacy, overshadowing, inadequate car parking, an inaccurate arborist report, and secondary street fencing.
When the Council did not determine the application within the prescribed period, the applicant commenced a Class 1 appeal on 4 November 2025 under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), appealing the deemed refusal.
The Conciliation Conference Process
Commissioner Targett arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 28 and 29 April 2026.
The process included:
A site view on 28 April 2026, where the Commissioner inspected the Subject Land and walked parts of Taren Road and Waterview Avenue with the parties and their experts; and
Without-prejudice negotiations between the parties, facilitated by the Commissioner.
During the conciliation conference, the parties reached a full agreement on the terms of a decision that would be acceptable to both sides. The applicant provided amended plans and documents to the Court on 29 April 2026 (the Amended Development Application), which incorporated a number of changes designed to address the Council’s concerns and the residents’ objections.
Key Amendments to the Development Application
The agreed amendments included:
Increased ground floor setbacks on the western side of the Subject Land;
Retention of trees in the south western corner of the Subject Land;
Modified driveway and access arrangements;
Changes to the size and presentation of the swimming pools;
Changes to colours and finishes; and
Increased landscaping throughout the site.
Jurisdictional Considerations Satisfied
Under s 34(3) of the LEC Act, the Commissioner was required to dispose of the proceedings in accordance with the parties’ agreement, provided that the agreed decision was one that the Court could have made in the proper exercise of its functions. Commissioner Targett confirmed that all relevant jurisdictional preconditions had been met.
Zoning and Permissibility
The Subject Land is zoned C4 Environmental Living under the Sutherland Local Environmental Plan 2015 (SLEP). While dual occupancy development is generally prohibited in the C4 zone, the Land benefits from an additional permitted use under cl 2.5 and Item 28 of Schedule 1 of the SLEP (“Use of certain land in Zone C4”). The Commissioner accepted that the Amended Development Application was capable of approval having regard to the C4 zone objectives, which include providing for low-impact residential development that preserves ecological, scientific and aesthetic values.
Compliance with Development Standards
The parties agreed, and the Commissioner accepted, that the Amended Development Application complied with all relevant development standards in the SLEP, including:
Height and floor space ratio controls;
Minimum lot size for strata subdivision: cl 4.1B of the SLEP requires a minimum lot size of 700m² for strata subdivision of a dual occupancy in the C4 zone. The Subject Land is 733.3m², satisfying this requirement;
Landscaped area: cl 6.14 of the SLEP requires 40% of the site area to consist of landscaped area – a standard with which the Amended Development Application complies; and
Acid sulfate soils: The Land is mapped as “Class 5”, but the excavation does not exceed 5m below AHD, so no preliminary investigation was required.
Flood Planning
The Subject Land is located within the flood planning area, engaging cl 5.21 of the SLEP. The Court accepted that the matters under cl 5.21(2) and (3) had been appropriately addressed, relying on a Flood Impact Assessment Report prepared by AE Consulting Engineers (dated 7 April 2026) and a Joint Expert Report of the flooding experts.
Coastal Management (RH SEPP)
Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies because the Subject Land is within the “coastal environment area” and “coastal use area”. Having regard to the stormwater plans, sediment and soil erosion plan, and landscape plans, the Commissioner accepted that the development had been appropriately designed and sited to avoid or mitigate adverse impacts on the coastal environment.
Contamination (Chapter 4, RH SEPP)
The requirements of s 4.6 of the RH SEPP were considered. The Subject Land has a longstanding history of residential use with no known history of potentially contaminating uses or events, and was therefore suitable for the proposed development.
Sustainable Buildings (BASIX)
The State Environmental Planning Policy (Sustainable Buildings) 2022 applies. A BASIX Certificate (No. 1792427M_04 dated 28 April 2026) was included in the Amended Development Application.
Earthworks, Stormwater, and Urban Design
The Commissioner confirmed that the matters in cl 6.2 (earthworks), cl 6.4 (stormwater management), and cll 6.16–6.17 (urban design) of the SLEP had been properly considered, with reference to a Geotechnical Report, the Statement of Environmental Effects, and the agreed conditions of consent.
Public Interest and Submissions
The three public submissions received during the notification period were taken into account. The Commissioner noted that the amendments to the Development Application (particularly the increased setbacks, tree retention, and landscaping improvements) addressed the concerns raised by residents.
The Court’s Decision
Because the parties had reached a genuine agreement, and the Commissioner was satisfied that the decision was one the Court could properly make, the Court made the following orders on 6 May 2026:
The appeal is upheld.
Development application DA25/0497, as amended, is determined by the grant of development consent, subject to the conditions of consent contained in Annexure A to the judgment.
Importantly, the Commissioner noted that in making the orders to give effect to the agreement, he was not required to, and did not, make any merit assessment of the issues that were originally in dispute. This is a standard feature of s 34 conciliation determinations: the Court’s role is to accept the parties’ agreed position provided it is legally permissible, not to substitute its own merits view.
Key Takeaways for Developers and Practitioners
This case highlights several important lessons for residential development in sensitive environmental zones:
1. The s 34 conciliation process works.
Class 1 appeals can be resolved efficiently and cost-effectively through a court-facilitated conciliation conference. The process encourages open negotiation, often leading to a mutually acceptable outcome without the time and expense of a contested hearing.
2. Be prepared to amend your plans.
The applicant here did not simply rely on the original lodged plans. It made meaningful amendments – increasing setbacks, retaining trees, modifying pools, and improving landscaping – to address the Council’s concerns. Flexibility and a willingness to compromise are critical to achieving consent.
3. Environmental zoning does not prohibit development – but it requires careful design.
The C4 Environmental Living zone has strict objectives, but dual occupancy was permissible here because of an additional permitted use clause. The key was demonstrating that the development would not have an adverse effect on ecological, scientific, or aesthetic values, and that it preserved and enhanced the natural landscape setting.
4. Technical reports are essential.
The applicant prepared a suite of technical reports: flood impact assessment, geotechnical report, arboricultural impact assessment (including resistograph testing for Tree 9), stormwater plans, landscape plans, and a BASIX certificate. These reports provided the evidentiary basis for the jurisdictional findings.
5. Public submissions must be taken seriously.
Although only three objections were received, the Court expressly noted that those submissions were taken into account, and the amendments appear to have responded to the concerns raised (privacy, overshadowing, parking, fencing). Ignoring community feedback is rarely a successful strategy.
Conclusion
Shelby Brothers Pty Ltd v Sutherland Shire Council is a straightforward yet instructive example of how development appeals can be resolved by agreement under s 34 of the LEC Act. The Court upheld the appeal and granted conditional consent, with the Commissioner’s judgment serving as a useful checklist of the jurisdictional matters that must be satisfied for a dual occupancy development in a C4 zone on the urban fringe of Sydney.
For developers, consultants, and councils alike, the case reinforces the value of early, good-faith negotiations and the importance of a well-prepared, fully documented development application – even when the proposed site is in a sensitive environmental zone.
Disclaimer: This blog post is for general informational purposes only and does not constitute legal advice. You should consult with one of our qualified solicitors for advice tailored to your specific situation. Contact us today to make an appointment.
