Chan v City of Canada Bay Council

[2021] NSWLEC 1782

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chan v City of Canada Bay Council [2021] NSWLEC 1782

Hearing dates:

Conciliation conference on 12, 26 October, 9, 19 November and 2 December 2021, final agreement filed 7 December 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend DA2021/0146 and to rely upon the amended documents and plans set out in Condition 1 of Annexure A.

(2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in such amount as may be agreed or assessed.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA2021/0146 (as amended) for the demolition of the existing dwelling and construction of a three-storey boarding house with eight boarding rooms and manager’s residence above basement parking for five cars, two motorcycles and two bicycles, and associated engineering and landscaping works, at 97 St Georges Crescent in Drummoyne, subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.1, 6.13

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 28, 29, 30A,

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

State Environmental Planning Policy (Housing) 2021, Schedule 7, cl 10

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

Texts Cited:

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

Category:

Principal judgment

Parties:

See Ching Chan (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/222255

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA2021/0146 (DA) by City of Canada Bay Council (the Respondent). The DA sought consent for demolition of the existing dwelling and construction of a three storey boarding house comprising fifteen boarding rooms including two accessible rooms plus one manager's residence, with parking for eight cars, four motorcycles and five bicycles at 97 St Georges Crescent, Drummoyne (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12, 26 October, 9, 19 November and 2 December 2021. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Whilst the amended Application remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to the proposal’s compatibility with the context, visual and acoustic privacy, landscaping, residential amenity, driveway access, traffic and parking, amongst other contentions.

6. Of note, the amended DA has reduced the proposed scale of the boarding house from fifteen to eight boarding rooms, with a manager’s residence and basement parking for five cars, two motorcycles and two bicycles.

7. 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 amended Development Application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 application accompanying this matter.

10. The parties agree, and I am satisfied, the Canada Bay Local Environmental Plan 2013 (CBLEP) is a relevant environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development, characterised as a boarding house, is permissible with consent.

11. The parties agree, and I am satisfied, that all principal development standards of the CBLEP have been met by the DA. In particular, cl 4.3 - Height of buildings - limits development to a maximum height of 8.5m and the proposal complies with this standard. Further, cl 4.4 - Floor space ratio (FSR) - limits development to a maximum FSR of 0.5:1.

12. Additionally, under cl 29(c) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), an additional 0.5:1 FSR also applies to the proposal, resulting in a total maximum FSR of 1:1 being permitted on the site for a boarding house development. The amended DA complies with this maximum FSR.

13. The parties agree, and I am satisfied, that those matters set out in cl 5.10 - Heritage conservation - of the CBLEP have been adequately considered. It is noted the site does not contain a heritage item, and is not within a heritage conservation area.

14. The parties agree, and I am satisfied, that matters set out in cl 6.1 - Acid sulfate soils - of the CBLEP have been adequately considered. It is noted the DA proposes works which will be entirely above 5m AHD and it is unlikely these works will cause any lowering of the water table. Accordingly, a Preliminary Acid Sulfate Soils Assessment is not required.

15. The parties agree, and I am satisfied, that matters set out in cl 6.13 - Development in areas subject to aircraft noise - of the CBLEP have been appropriately considered.

16. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The site is not located within an identified investigation area, and the parties agree the site has historically been used for residential purposes. The site is currently occupied by a dwelling house. The DA does not seek to alter the categorisation of land use. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.

17. The parties agree, and I am satisfied, that the DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). A BASIX certificate was submitted with the amended DA identifying it complies with applicable water, thermal comfort and energy targets. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

18. The parties agree, and I am satisfied, that SEPP ARH is an additional relevant environmental planning instrument. I am satisfied the proposed development is defined as a boarding house under Division 3 of the SEPP ARH. Pursuant to cl 28, boarding houses are permissible with consent. And pursuant to cl 30A the parties agree, and I am satisfied, that the amended DA is compatible with the character of the local area.

19. Additionally, the parties agree that whilst the SEPP ARH was repealed on 26 November 2021 by cl 10(1)(a) of State Environmental Planning Policy (Housing) 2021, cl 2(a) of Sch 7 makes clear the SEPP ARH continues to apply to the subject DA.

20. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

21. Accordingly, the Court notes that:

1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.

2. The Applicant has uploaded the amended Development Application to the NSW Planning Portal on 7 December 2021, comprising the documents and plans set out in Condition 1 of Annexure A.

Orders

22. The Court orders that:

1. Leave is granted to the Applicant to amend DA2021/0146 and to rely upon the amended documents and plans set out in Condition 1 of Annexure A.

2. Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in such amount as may be agreed or assessed.

3. The appeal is upheld.

4. Consent is granted to Development Application DA2021/0146 (as amended) for the demolition of the existing dwelling and construction of a three-storey boarding house with eight boarding rooms and manager’s residence above basement parking for five cars, two motorcycles and two bicycles, and associated engineering and landscaping works, at 97 St Georges Crescent in Drummoyne, subject to the conditions in Annexure A.

……………..

M Pullinger

Acting Commissioner of the Court

Annexure A (596576, pdf) 

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Decision last updated: 21 December 2021