CJH Investment Holdings Pty Ltd v Northern Beaches Council

[2021] NSWLEC 1728

Land and Environment Court

New South Wales

Medium Neutral Citation:

CJH Investment Holdings Pty Ltd v Northern Beaches Council [2021] NSWLEC 1728

Hearing dates:

Conciliation conference on 24 November 2021

Date of orders:

24 November 2021

Decision date:

24 November 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The applicant is to pay those costs of the Council that have been thrown away as a result of the applicant being given leave to file the amended DA in Court which, together with the costs order made on 24 September 2021, are agreed in the amount of $5,000, within 28 days of the making of these orders.

(2) The Appeal is upheld;

(3) Development Application No. DA2020/1441 for alterations, additions and a change of use of an existing two storey office premise to a twenty (20) double bedroom boarding house (including manager’s room) with seven (7) car parking spaces and a neighbourhood shop with one (1) car parking space at Lot A, DP345183 known as No. 2B Francis Street, Dee Why is approved subject to the conditions set out in Annexure 'A'.

Catchwords:

APPEAL – development application – change of use to a boarding house and neighbourhood shop – existing building – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

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

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

Warringah Local Environmental Plan 2011, cll 4.3, 5.4, 5.21

Texts Cited:

Draft State Environmental Planning Policy (Housing) 2021

Category:

Principal judgment

Parties:

CJH Investment Holdings Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
McCabes Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/10440

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing building at a site known as 2B Francis Street, Dee Why, and for a change of use of the building from an office premises to a 20 room boarding house (including manager’s room) with 7 car parking spaces and a ground floor neighbourhood shop with one car parking space. The development application was received by Northern Beaches Council on 17 November 2020. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). The development application was subsequently refused by the Council on 28 April 2021. 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 final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 on 24 November 2021. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was reached following the lodging of amended plans on the NSW Planning Portal in the morning of 24 November 2021 with the agreement of the Council (reference PEH 884), as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments to the plans increase the second floor setback to Francis Street, address privacy issues on the northern elevation, provide indents along the southern elevation that house the AC units, and make changes to the internal configuration.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed statement on the jurisdictional pre-requisites, filed on the same date.

5. 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 site is zoned R3 medium density residential under the Warringah Local Environmental Plan 2011 (WLEP), and development for the purposes of boarding houses and neighbourhood shops is permissible in the zone.

• Clause 4.3(2) of the WLEP imposes a height development standard of 11m, with which the proposed development complies.

• Clause 5.4(7) of the WLEP prevents a retail floor area of a neighbourhood shop from exceeding 80sqm. The proposed neighbourhood shop has a GFA of 38sqm and complies with this standard.

• Clause 5.21 of the WLEP, concerning flood planning, applies to the site, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application was accompanied by Flood Risk Assessment Report prepared by Stellen Civil Engineering dated 14 October 2020 and a Letter of Design Intent prepared by Stellen dated 15 October 2020 which were filed with the Court on 15 January 2021. Based on the contents of those documents, I have considered the matters in cl 5.21(3) of the WLEP and I am satisfied of the matters in cl 5.21(2).

• The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. At cl 30, consent cannot be granted unless certain requirements are met. Based on the agreed statement on the jurisdictional pre-requisites and on the architectural plans, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development.

• Clause 30A of the SEPP ARH requires consideration of “whether the design of the development is compatible with the character of the local area”. The existing use of the land is not characteristic of the surrounding area and is a prohibited use in the zone, but the proposal seeks to change the use to a permissible use and to carry out alterations and additions to facilitate that use. The design of the proposed development is compatible with the character of the local area as it utilises the existing building (which forms part of the existing character), but makes changes to the materials and provides landscaping that enhances its streetscape presentation. The third storey addition (second floor) is set back further than the lower levels on all sides, and landscaped planter boxes are provided along the southern and eastern elevations on the first floor and along the edge of the outer perimeter of the second floor level. The result is that the design of the alterations and additions result in a building that is compatible with the residential uses in the local area that are typically in a landscaped setting.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. Based on the historical use of the site as commercial office premises, it is considered unlikely that the site will require remediation works. However, the Council has identified that the existing building may contain hazardous building materials that may have been used in the construction of the building, and recommended that a hazardous building materials survey be undertaken to ensure that the premises is safe with respect to hazardous materials during demolition and building works and prior to occupation. Appropriate conditions of consent have been agreed to by the parties, and I accept that the site will be suitable for the proposed development.

• The Court is required to take into consideration the provisions of the Draft State Environmental Planning Policy (Housing) 2021, as it is draft environmental planning instrument. The draft instrument contains a savings provision that would, if the instrument is commenced, allow the proposed development the subject of the appeal to be considered as if the draft instrument had not commenced. As such, and in circumstances where boarding houses are a permissible use in the zone in which the site is located, the draft instrument can be given limited weight.

6. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for height, solar access, private open space and accommodation size. Accordingly, consent cannot be refused on any of those grounds.

7. Having reached the state of satisfaction that the decision 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)).

8. In making the orders to give effect to the agreement between the parties, 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.

9. The Court notes that:

1. Northern Beaches Council (Council) as the relevant consent authority for the purposes of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) agrees to the Applicant amending the development application no. DA2020/1441 (amended DA);

2. The amended DA has been uploaded to the NSW Planning Portal on 24 November 2021; and

3. The Applicant has subsequently filed the amended DA with the Court.

10. The Court orders that:

1. The applicant is to pay those costs of the Council that have been thrown away as a result of the applicant being given leave to file the amended DA in Court, which, together with the costs order made on 24 September 2021, are agreed in the amount of $5,000, within 28 days of the making of these orders.

2. The Appeal is upheld.

3. Development Application No. DA2020/1441 for alterations, additions and a change of use of an existing two storey office premise to a twenty (20) double bedroom boarding house (including manager’s room) with seven (7) car parking spaces and a neighbourhood shop with one (1) car parking space at Lot A, DP345183 known as No. 2B Francis Street, Dee Why is approved subject to the conditions set out in Annexure 'A'.

……………………….

J Gray

Commissioner of the Court

Annexure A (296150, pdf)

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Decision last updated: 24 November 2021