C&C Investment Trading Pty Ltd v Strathfield Municipal Council

[2022] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation:

C&C Investment Trading Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1124

Hearing dates:

Conciliation conference on 23 December 2021 and 17 February 2022

Date of orders:

18 March 2022

Decision date:

18 March 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Proceedings 2021/284890

See Orders at [12]

Proceedings 2021/ 314458

See Orders at [13]

Catchwords:

APPEAL – development application for alterations and additions – building information certificate – boarding house – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.6, 8.25

Environmental Planning and Assessment Regulation 2000 cl 55, Sch 1

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

C&C Investment Trading Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
T To (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2021/284890; 2021/314458

Publication restriction:

No

Judgment

1. COMMISSIONER: These two appeals concern a boarding house at 51-55 Homebush Road, Strathfield, which includes a heritage item known as ‘Merriwa’. The first appeal (2021/284980) relates to a development application for alterations and additions to the boarding house (the development appeal). The second appeal is against the refusal for a building information certificate for works carried out at the premises (the building information certificate appeal). The final orders in each of the appeals, outlined in [12]-[13] below, are made as a result of agreements between the parties that were reached following a conciliation conference.

2. The appeal with respect to the development application is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and the appeal with respect to the building information certificate is lodged pursuant to s 8.25. In exercising the functions of the consent authority on 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 also has broad powers with respect to the appeal concerning the building information certificate, pursuant to s 8.25(3) of the EPA Act. Section 8.25(3) provides:

(3) On hearing the appeal, the Court may do any one or more of the following—

(a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b) revoke, alter or confirm a notice to supply information,

(c) make any other order that it considers appropriate.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held by Microsoft Teams following a site inspection on 23 December 2021 and continued by telephone on 17 February 2022. I presided over the conciliation conference, at which both appeals were dealt with.

4. Following the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the proceedings that was acceptable to the parties. The final agreement in the development appeal was filed on 7 March 2022, and the final agreement in the building information certificate appeal was filed on 15 March 2022.

The development appeal

5. The agreement in the development appeal was reached following the lodgement of amended plans on the NSW Planning Portal on 7 March 2022 with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) (I note that despite the repeal of the EPA Regulation 2000, it continues to apply to the development application the subject of the development appeal, pursuant to Sch 6 cl 3 of the Environmental Planning and Assessment Regulation 2021).

6. The alterations sought by the amended development application include the provision of an accessible path, the construction of new planter boxes, the removal of sheeting from the front fence, and the removal of louvres and a portion of masonry piers from the upper level of the second building. The amended development application also seeks the use of areas that were not constructed in accordance with the prior development consent for the boarding house.

7. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development application was made with the consent of the owners of the land.

• The development application was notified and the submission received has been taken into consideration.

• The use for the purpose of a boarding house remains permissible with consent in the R2 Low Density Residential zone under Strathfield Local Environmental Plan 2012 (SLEP).

• The provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) continue to apply to the development appeal, and the altered building complies with cl 30 of the SEPP ARH.

• The proposed development does not involve development that engages any of cll 6.1 (acid sulfate soils), 6.2 (earthworks) or 6.11 (terrestrial biodiversity) of the SLEP.

The building information certificate appeal

8. The agreement in the building information certificate appeal directs the Council to issue a building information certificate for the boarding house.

9. I am satisfied that the decision to direct the Council to issue a building information certificate for the alterations and additions specified in the plans as denoting the building information certificate, is a decision that the Court can make in the proper exercise of its functions. This is because such a decision falls within the broad power of the Court set out in s 8.25(3)(a) of the EPA Act to “direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit”.

Final Orders

10. Having reached the state of satisfaction that the decision in each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

11. In making the orders to give effect to the agreement between the parties in the development appeal, I was not required to make, and have not made, 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.

In Proceedings 2021/284890:

12. The Court orders that:

1. The appeal is upheld.

2. Development Application DA2021/211 seeking development consent for alterations and additions to an existing boarding house (LEC approved) and heritage item – I147 (“Merriwa” – Federation House), including removal of a heritage listed tree and provision of ramp on Lot 2 DP 1886 and Lot 11A DP 17492, known as 51-55 Homebush Road, Strathfield is approved subject to the conditions in Annexure A.

13. In Proceedings 2021/ 314458:

14. The Court orders that:

1. The appeal is upheld.

2. The Respondent is directed to issue a Building Information Certificate with respect to the items identified and marked “denotes building information certificate” in the plans below, for the boarding house at Lot 2 DP 1886 and Lot 11A DP 17492, known as 51-55 Homebush Road, Strathfield.

Basement Plan, Drawing No. 1 Issue J prepared by Katris Architects dated 02 March 2022

Ground Floor Plan, Drawing No. 2, Issue J, prepared by Katris Architects dated 02 March 2022

Level 1 Plan, Drawing No. 3, Issue J, prepared by Katris Architects dated 02 March 2022

Level 2 Plan, Drawing No. 4, Issue J, prepared by Katris Architects dated 02 March 2022

Southern & Eastern Elevations, Drawing No. 5, Issue J, prepared by Katris Architects dated 02 March 2022

Western & Northern Elevations, Drawing No. 6, Issue J, prepared by Katris Architects dated 02 March 2022

Sections, Drawing No. 7, Issue J, prepared by Katris Architects dated 02 March 2022

Sections, Drawing No.8, Issue J prepared by Katris Architects dated 02 March 2022

Roof Plan, Drawing No. A1204, Issue J, prepared by Katris Architects dated 02 March 2022

……………………….

J Gray

Commissioner of the Court

Annexure A (306496, pdf)

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Decision last updated: 18 March 2022