Boulos v Campbelltown City Council

[2022] NSWLEC 1625

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boulos v Campbelltown City Council [2022] NSWLEC 1625

Hearing dates:

Conciliation conference on 4 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away, by reason of the amendment of Development Application No. 1038/2021/DA-BH, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $14,000 within 28 days of the date of these orders.

(2) The Appeal is upheld.

(3) Development consent is granted to Development Application No. 1038/2021/DA-BH for the demolition of an existing dwelling and associated structures and the construction of a two-storey boarding house with eight (8) double lodger rooms (including a manager’s room), one (1) communal room, basement car parking spaces and landscaping at 17 Donaldson Street, Bradbury, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: boarding house development in R2 Low density residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2000, cl 55

Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 7.1, 7.2, 7.10

Conveyancing Act 1919, s 88B

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A, 30AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy Amendment (Flood Planning) 2021

Category:

Principal judgment

Parties:

Tania Boulos (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/337064

Publication restriction:

No

Judgment

1. COMMISSIONER: A boarding house development is proposed on a site known as 17 Donaldson Street, Bradbury for which consent has been refused.

2. The proposed development, as it was initially characterised by development application No 1038/2021/DA-BH, sought demolition of an existing dwelling and associated structures, and construction of a two-storey boarding house with eight double rooms, including manager’s studio), a communal room, ancillary parking spaces, removal of two trees and associated works.

3. The development application was lodged on 9 April 2021, with the consent of the owner of the land, and was notified and publicly exhibited by Campbelltown City Council (the Respondent) between 7 June 2021 and 6 July 2021.

4. On 25 November 2021 the development application was refused by the Respondent.

5. The Applicant in these proceedings now brings this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

6. The Applicant amended the development application on two occasions prior to the hearing, which had the effect of resolving a number of the contentions in dispute.

7. As a result of further amendments arising from joint expert reports prepared by experts in town planning, filed 1 November 2022, and stormwater experts filed on 2 November 2022, the parties agree the remaining contentions are resolved.

8. Accordingly, while the matter was initially listed before me for hearing on 3 November 2022, the matter was re-allocated to me by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for conciliation on 4 November 2022, at which I presided.

9. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to the Respondent, as the relevant consent authority, agreeing to the Applicant, in accordance with cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), amending the development application.

10. This agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

11. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 November 2022.

12. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

13. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [31], and as follows:

14. The site is located within the R2 Low Density Residential zone according to the Campbelltown Local Environmental Plan 2015 (CLEP), in which the objectives for development are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

•  To minimise overshadowing and ensure a desired level of solar access to all properties.

•  To facilitate diverse and sustainable means of access and movement.

15. It is relevant to record here that, at the time the development application was lodged, boarding house development was permitted with consent in the R2 zone.

16. Subsequent to lodgement, the CLEP was amended to prohibit such development in the R2 zone. However, the effect of the savings provision is such that the amendment prohibiting such development does not apply to a development application, as it was made, but not determined, before the commencement of the amendments. 

17. The proposed development complies with the height of building development standard at cl 4.3 of the CLEP. No maximum floor space ratio (FSR) applies to the land pursuant to cl 4.4 of the CLEP, however the proposed development complies with the FSR of 0.55:1 at cl 29(1)(a) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), being the applicable environment planning instrument by virtue of the relevant savings provision.

18. The site is identified as a Flood Control Lot with respect to the 1% Annual Exceedance Probability (AEP) flood level, due to overland flow in the rear yard. Owing to the commencement of State Environmental Planning Policy Amendment (Flood Planning) 2021 on 14 July 2021, provisions in respect of flood planning, at cl 7.2 of the CLEP, were repealed with no savings provision to continue its effect.

19. Nevertheless, on the basis of the letter of advice prepared by Mr Oscar Gutierrez of Engineering Studio dated 16 August 2022, the amended architectural plans, and the amended stormwater plans at Condition 1 of the agreed conditions of consent, I accept the proposal includes measures to minimise the risk to life, and to ensure the safe evacuation of people in the event of flood, particularly in the rear yard of the site where no fill is proposed so as not to affect flood behaviour, and where bollards and signage are proposed.

20. On the basis of the architectural plans, and the stormwater plans prepared by Engineering Studio dated 16 August 2022, I accept that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, pursuant to cl 7.1 of the CLEP.

21. Clause 7.10 of the CLEP precludes the grant of consent unless the consent authority, or Court on appeal, is satisfied that any of the services referred to in that clause that are essential for the development are available or that adequate arrangements have been made to make them available when required.

22. The development application relates to land that is located in an existing urban area, where those services identified at cl 7.10 of the CLEP are currently available on the site. However, the development application also seeks consent for stormwater to be disposed of by a new connection into an existing drainage pipe located in the property to the rear. A condition of consent is agreed, which defers operation of development consent, subject to the obtaining of an easement to drain stormwater that burdens the rear property and benefits the subject site, and that the same be registered on the title pursuant to s 88B of the Conveyancing Act 1919.

23. I note the parties’ agreement is founded upon evidence of correspondence between the owners of the relevant properties, or their agents, and documentation in respect of the existing and proposed stormwater arrangements.

Affordable Housing SEPP

24. Clause 30 of the Affordable Housing SEPP precludes the grant of consent to development unless the Court is satisfied of each of the matters set out in that clause. On the basis of the assessment documented at Appendix A of the Addendum Statement of Environmental Effects dated June 2022 prepared by GAT & Associates Pty Ltd (Addendum SEE), I am satisfied that each of the matters in cl 30(1) of the Affordable Housing SEPP is achieved by the proposed development.

25. The proposal is for 8 boarding rooms, which is less than the maximum limit of 12 rooms set by cl 30AA of the Affordable Housing SEPP when the site is located in a R2 zone, as is the case here.

26. Clause 30A of the Affordable Housing SEPP precludes the grant of consent to development unless it has taken into consideration whether the design of the development is compatible with the character of the local area. On the basis of the analysis at Section 4.1.3(a) of the Addendum SEE, I accept that the proposal is designed in a form that is representative of a two-storey dwelling consistent with the density and form of more contemporary dwellings in the local area, and with the desired future character of the relevant controls.

State Environmental Planning Policy (BASIX) 2004

27. As the proposed development is for a boarding house to accommodate a maximum of 16 lodgers and has a gross floor area of greater than 300m², the development is not defined as a BASIX-affected building according to the dictionary of the EPA Regulation.

Conclusion

28. 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.

29. 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.

30. The Court notes:

1. The Applicant has amended Development Application No. 1038/2021/DA-BH (“the development application”) with the agreement of the Respondent, Campbelltown City Council, as the relevant consent authority pursuant to clause 55(1) of the EPA Regulation to rely on the following amended plans and documents:

Plan/Document Detail	Drawing/Revision Number	Prepared by	Date
Contours and Detail Plan	19597, Issue A	New Way Surveying	02.12.2019
Demolition Plan	DA.02 Rev: LEC-B	Monument Design	30.06.2022
Site Plan	DA.03 Rev: LEC-B	Monument Design	30.06.2022
Ground Floor Plan	DA.04 Rev: LEC-B	Monument Design	30.06.2022
First Floor Plan	DA.05 Rev: LEC-B	Monument Design	30.06.2022
Roof Plan	DA.05 Rev: LEC-B	Monument Design	30.06.2022
Planning Computations	DA.07 Rev: LEC-B	Monument Design	30.06.2022
Elevations North and South	DA.08 Rev: LEC-B	Monument Design	30.06.2022
Elevations East and West	DA.09 Rev: LEC-B	Monument Design	30.06.2022
Sections 1	DA.10 Rev: LEC-B	Monument Design	30.06.2022
Section 2	DA.11 Rev: LEC-B	Monument Design	30.06.2022
Driveway profile, accessible path of travel	DA.12 Rev: LEC-B	Monument Design	30.06.2022
Window and Door Schedule	DA.13 Rev: LEC-B	Monument Design	30.06.2022
Finishes Schedule	DA.14 Rev: LEC-B	Monument Design	30.06.2022
Landscape Plan
Stormwater Concept and Sediment and Erosion Control Plans and Fence Detail	Job 20752, Drawings C00.01, C01.01, C01.02, C02.01, C02.02, C02.03, C02.04	Engineering Studio, Civil and Structural	September 2020, Issue E dated 02.11.22
Stormwater Concept Plan
Plan of Management	Amended June 2022	GAT and Associates Town Planners	October 2020
Acoustic Report – Noise Impact Assessment	SYD-2022-1105-R001B	Acouras Consultancy	11.08.2022
Hazardous Materials Inspection Report	E25602.E09.001 Rev 0	EI Australia Enviro Consultants	25.03.2022
Waste Management Plan	2011-A	Monument Plan	October 2020
Arboricultural Impact Assessment	AIA-BOU 07/22 Rev B	NSW Trees Arborcultural Consultants	18 July 2022

(collectively, the “Amended Development Application”).

2. The Amended Development Application was lodged on the NSW planning portal on 3 November 2022, with evidence of the same provided to the Court.

3. The Applicant has subsequently filed the Amended Development Application with the Court on 4 November 2022.

4. The costs figure at [31(1)] includes the costs thrown away by reason of the amendment to the development application on 19 August 2022, and satisfies the order made by the Court pursuant to s8.15(3) of the EPA Act on 19 August 2022.

Orders

31. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away, by reason of the amendment of Development Application No. 1038/2021/DA-BH, pursuant to s8.15(3) of Environmental Planning and Assessment Act1979, in the agreed sum of $14,000 within 28 days of the date of these orders.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. 1038/2021/DA-BH for the demolition of an existing dwelling and associated structures and the construction of a two-storey boarding house with eight (8) double lodger rooms (including a manager’s room), one (1) communal room, basement car parking spaces and landscaping at 17 Donaldson Street, Bradbury, subject to the conditions of consent in Annexure A.

……………………

T Horton

Commissioner of the Court
Annexure A) (284207, pdf)

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Decision last updated: 11 November 2022