Cairich Enterprise Pty Ltd v Strathfield Municipal Council

[2021] NSWLEC 1709

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cairich Enterprise Pty Ltd v Strathfield Municipal Council [2021] NSWLEC 1709

Hearing dates:

Conciliation conference on 8 and 18 October 2021 and 1 November 2021

Date of orders:

22 November 2021

Decision date:

22 November 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $12,000.00 payable within 14 days of these Orders being made.

(2) The appeal is upheld.

(3) Development Application 2020/156 for demolition of existing structures and construction of a five-storey boarding house on land legally described as Lot 1 DP 914078, known as 27 Albert Road, Strathfield is approved subject to the conditions set out in Annexure “A” to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A, 52

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

State Environmental Planning Policy (Infrastructure) 2007, cll 101, 104

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Strathfield Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, 6.4

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

Cairich Enterprise Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Hall & Wilcox Lawyers (Respondent)

File Number(s):

2021/153290

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Strathfield Municipal Council (Council) of Development Application No 2020/156 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 810.7m² parcel of land identified as Lot 1 in DP 914078 at 27 Albert Road, Strathfield (the Site).

3. The DA as submitted to the Council on 8 September 2020 sought consent for demolition of the existing structures and the construction of a five storey boarding house containing 54 boarding rooms, including one manager’s room, with a basement level containing parking.

4. The DA was publicly notified between 28 September and 19 October 2020, resulting in the receipt of 23 submissions. The DA architectural plans, as publicly notified at this time, were prepared by Texco Architecture, dated 21 August 2020 (Revision A plans).

5. On 25 February 2021, the applicant amended the DA as illustrated in the Revision B architectural plans prepared by Texco Architecture (date illegible) (Revision B plans), resulting in a reduction in the number of boarding rooms to 46 (including the manager’s room). The Revision B plans were publicly notified between 17 March 2021 and 12 April 2021, resulting in the receipt of 15 submissions. On 6 May 2021 the amended DA was refused by the Strathfield Local Planning Panel (Planning Panel).

6. On 28 May 2021 the Applicant filed this Class 1 Appeal with the Court and on 13 July 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court arranged a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), that was held before me on 8 and 18 October 2021 and 1 November 2021.

7. On 1 November 2021 the parties advised the Court that they had reached an agreement pursuant to s 34(3) of the LEC Act, based on further amended plans. They also advised that the amendments to the application had been agreed to by the Council and lodged on the NSW planning portal on 29 October 2021.

8. On 2 November the applicant filed a copy of the s 34 agreement with the Court, a list of the documents that comprised the further amended application, and copies of those documents as uploaded to the NSW planning portal on 29 October 2021. Those documents are listed on the document filed with the Court by the applicant on 2 November 2021 entitled “Amended development application documentation as lodged on NSW planning portal” and include:

1. the Revision G architectural plans prepared by Texco Architecture dated 19 October 2021 (Revision G plans),

2. revised stormwater plans prepared by SGC Consulting Engineers, Revision C, dated 21 October 2021,

3. a revised landscape plan prepared by Conzept Architects, Revision H dated 12 October 2021, and

4. a revised BASIX Certificate, number 1129314M_03 dated 19 October 2021.

9. The main changes between the amended DA plans (the Revision B plans) that formed the basis of the DA refused by the Planning Panel, and the final Revision G plans the subject of the s 34 agreement, can be summarised as:

1. At ground level and above, the built mass has been split into two forms: Block A closest to Albert Road, and Block B at the rear. The two blocks are separated by a communal open space courtyard that is approximately 9m wide. A communal lounge is located at ground level with direct access to the communal open space courtyard.

2. The changes to the built form have resulted in a decrease to rear building setback by approximately 4m (to 6m). The front setback to Albert Road remains largely unchanged at 7.7m. The height of the building has been reduced by one storey, to 4 storeys in total, to comply with the 14m height control. The roof form has changed to a pitched roof. The removal of the fifth level has enabled a slight increase in the floor to floor heights within the boarding rooms.

3. With the splitting of the built form into two blocks the floor layouts have changed significantly. On Levels 1 – 3 Block B contains six double boarding rooms per floor, and Block A contains five double rooms per floor. All elevations change to reflect the revised built form and floor layouts.

4. Below ground the basement design has been changed from two levels, with the lower level accessed via a car lift and the use of double height car stackers at the lower level to a fully ramped split level arrangement with four half levels. The car lift and car stackers have been removed and vehicular ramps provided to each parking level.

5. As a result of the above changes the number of boarding rooms has reduced from 54 to 40 (including the manager’s room), and the total number of car parking spaces (for boarders) has reduced to 20 spaces, commensurate with the reduction in the number of boarding rooms.

6. The floor space ratio (FSR) has also reduced to 1.43:1, compared to 1.52:1 previously.

10. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

11. In relation to the Strathfield Local Environmental Plan 2012 (SLEP) the relevant provisions are:

1. The development is for the purposes of a “boarding house”, which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone), and the development is consistent with the objectives of the R3 Zone.

2. The maximum height of the development, as amended, is 13.9m, and therefore complies with the 14m height of buildings development standard at cl 4.3 of the SLEP.

3. The development, as amended, has a floor space ratio (FSR) of 1.43:1 which is less than the combined maximum FSR development standard at cl 4.4 of the SLEP of 1.45:1, plus the 0.5:1 ‘bonus’ provided for by cl 29(1)(c) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

4. Clauses 6.1 Acid Sulfate Soils, 6.2 Earthworks, and 6.4 Essential services are also relevant considerations. Each of these clauses are addressed in the Strathfield Municipal Council Development Assessment Report for this application, and where necessary conditions of consent have been included to ensure satisfactory resolution of issues.

12. The proposed development includes a Boarding House under Division 3 of Part 2 of the SEPP ARH. Clauses 29 and 30 set out a number of development standards that apply to the DA.

13. Clause 29 refers to the standards that cannot be used to refuse consent. The development complies with each of those standards for:

1. Building height;

2. landscape area;

3. solar access to communal room;

4. compliant private open space and for lodgers and on site boarding house manager;

5. parking; and

6. accommodation size.

14. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. The development complies with the relevant standards, and specifically:

1. at least one communal living room is provided;

2. the gross floor area of each boarding room does not exceed 25 square metres;

3. no boarding room will be occupied by more than 2 adult lodgers;

4. adequate bathroom and kitchen facilities are provided for lodgers;

5. a boarding room is provided for a boarding house manager; and

6. bicycle and motorbike parking is provided at the nominated rates (subject to Condition 37 requiring the addition of one more bicycle space).

15. The parties are satisfied the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH, and there is no proposed subdivision of the boarding house in accordance with cl 52 of the SEPP ARH.

16. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular subcll 7(1) and (2), apply to the land and require consideration of any contamination and associated remediation. The parties have confirmed that the Site has been used for residential purposes for an extended time, it is considered the Site poses no risk of contamination, and no further consideration under cl 7(1)(b) or (c) of SEPP 55 is required.

17. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a BASIX Certificate Number 1129314M_03 dated 19 October 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in Conditions 1, 20 and 63 of the consent.

18. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies. A copy of the DA was referred to Ausgrid as it involves development within 5m of an exposed overhead electricity power pole. Ausgrid provided comments and confirmed it had no objection to the DA. The Ausgrid comments have been incorporated into Condition 11 of the consent.

19. The DA was also referred to Transport for NSW (TfNSW) in accordance with cl  101 of the SEPP Infrastructure. The TfNSW provided comments and recommended conditions of consent. An assessment of the DA against cll 101 and 104 are provided in the Strathfield Municipal Council’s Assessment Report for this application and the TfNSW requirements are incorporated into Condition 10 of the consent.

Disposal of proceedings in accordance with the parties’ decision

20. 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’ agreement.

21. The Court notes:

1. That Strathfield Municipal Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application 2020/156 filed with the Court on 28 May 2021.

2. That the amended application was lodged on the NSW planning portal on 29 October 2021.

3. That the Applicant subsequently filed the amended documentation with the Court on 2 November 2021.

22. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $12,000.00 payable within 14 days of these Orders being made.

2. The appeal is upheld.

3. Development Application 2020/156 for demolition of existing structures and construction of a five-storey boarding house on land legally described as Lot 1 DP 914078, known as 27 Albert Road, Strathfield is approved subject to the conditions set out in Annexure “A” to this agreement.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (399554, pdf)

Plan (250434, pdf)

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Decision last updated: 22 November 2021