CN Rochester Pty Ltd & B & L Touma Pty Ltd v Strathfield Municipal Council

[2022] NSWLEC 1391

Land and Environment Court

New South Wales

Medium Neutral Citation:

CN Rochester Pty Ltd & B & L Touma Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1391

Hearing dates:

Conciliation conference on 31 May 2022, 24 June 2022, 12 July 2022

Date of orders:

09 August 2022

Decision date:

09 August 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA 2020/162 for the demolition of the existing dwelling house and construction of a new 30 room boarding house at 14 Rochester Street, Homebush NSW, subject to the conditions contained at Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 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 30, 30A

State Environmental Planning Policy (Housing) 2021, Sch 7

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

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.100

Strathfield Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 6.1, 6.2

Category:

Principal judgment

Parties:

CN Rochester Pty Ltd (First Applicant)
B & L Touma Pty Ltd (Second Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
J Reid (First and Second Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Lionheart Lawyers Pty Ltd (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/344146

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Strathfield Local Planning Panel on behalf of the Strathfield Municipal Council (the Respondent) of Development Application No. 2020/162 seeking consent for the demolition of existing structures and construction of a three-storey boarding house containing 35 boarding rooms (including a manager’s room) over two levels of basement car parking at 14 Rochester Street, Homebush (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 31 May 2022.

3. At the conciliation conference, the parties reached an 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 time being granted for certain amendments to the development the subject of the development application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted a further adjournment so that those amendments agreed to between the parties could be finalised in amended plans and other documents.

5. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 12 July 2022.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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 [23], as follows:

9. The site is located within the R3 Medium Density residential zone, identified in the Strathfield Local Environmental Plan 2012 (SLEP) in which boarding house development is permitted with consent, where consistent with the objectives for development in the zone that are in the following terms:

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

• To provide a variety of housing types within a medium density residential environment.

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

10. The proposed development complies with development standards in respect of the height of buildings at cl 4.3 of the SLEP, and floor space ratio at cl 4.4 of the SLEP.

11. As the site is located in the vicinity of properties listed for their heritage significance in Sch 5 of the SLEP, the provisions of cl 5.10 of the SLEP applies to the proposal. On the basis of the Heritage Impact Statement, prepared by Weir Phillips Heritage and Planning, dated August 2020, and agreement of the heritage experts, I accept that no heritage management document is required in accordance with cl 5.10(5) of the SLEP.

12. The site is identified as being within an area consistent with class 5 acid sulfate soils for the purposes of cl 6.1 of the SLEP. While the site is not within 500m of a relevant class of land by the terms of cl 6.1(2) of the SLEP, the development application is supported by a Preliminary Site Investigation (PSI), prepared by GCA dated 11 August 2020 that recommends an acid sulfate soil assessment be undertaken prior to construction, and I note an agreed condition of consent has been imposed to reflect that recommendation.

13. On the basis of the Stormwater Concept Plan prepared by ZAIT Engineering Solutions Revision C, the PSI, the landscape drawings prepared by Vision Dynamics dated 15 June 2022, and agreed conditions of consent at Conditions 14 and 46, I have considered earthworks for which development consent is required, and I conclude 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, based on those matters at cl 6.2(3) of the SLEP.

State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP)

14. The Affordable Housing SEPP was repealed on 26 November 2021, replaced by State Environmental Planning Policy (Housing) 2021 (Housing SEPP). However, the Housing SEPP includes a savings provision, effective 14 April 2022, at Sch 7, that precludes the operation of the Housing SEPP in respect of a development application made, but not yet determined, on or before the commencement date.

15. The proposal meets the development standards in cl 30 of the Affordable Housing SEPP, and I am satisfied, on the basis of agreement between the relevant experts and the onsite view, that the proposal as amended is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP)

16. As the site is within the vicinity of the Main Suburban railway s 2.100 of the Transport SEPP precludes the grant of consent for residential development unless specified LA_eq levels are achieved.

17. The application is accompanied by a Noise Assessment prepared by Rodney Stevens dated 19 August 2020 that recommends noise control treatments to achieve the specified LA_eq levels, for which verification is required by Condition 50 of the agreed conditions of consent prior to issue of an occupation certificate.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

18. Consistent with the terms of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, the requirements of which were transferred to Resilience and Hazard SEPP on 1 March 2022, I have given consideration to the potential contamination of the site.

19. I accept the conclusions of the Preliminary Site Investigation, prepared by GCA, and I am satisfied that the land is suitable for the purpose for which development is proposed to be carried out.

Conclusion

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’ decision.

21. 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.

22. The Court notes that Strathfield Municipal Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) to the Applicants amending Development Application DA2021/1140 (the amended application), in accordance with the following plans and documents:

Description	Reference No.	Date	Revision	Prepared by
Site Plan	1006	20/06/2022	Issue D – S34	IDraft Architects
Basement L1 Plan	1008	20/06/2022	Issue D – S34	IDraft Architects
Ground Floor Plan	1009	20/06/2022	Issue D – S34	IDraft Architects
First Floor Plan	1010	20/06/2922	Issue D – S34	IDraft Architects
Second Floor Plan	1011	20/06/2022	Issue D – S34	IDraft Architects
Roof Plan	1012	20/06/2022	Issue D - S34	IDraft Architects
Elevations	1013	20/06/2022	Issue D – S34	IDraft Architects
Elevations	1014	20/06/2022	Issue D – S34	IDraft Architects
Sections	1015	20/06/2022	Issue D – S34	IDraft Architects
Stormwater Plan	D01	23/06/2022	C	David Zaiter
Landscape Concept Plan	20133 DA 1	15/06/2022	D	Vision Dynamics
Tree Inspection Report	-	16/05/2022	-	Treehaven Environscapes

1. The amended development application documents were lodged on the NSW Planning Portal on 18 July 2022.

2. The amended development application was filed with the Court on 12 July 2022.

Orders

23. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA 2020/162 for the demolition of the existing dwelling house and construction of a new 30 room boarding house at 14 Rochester Street, Homebush NSW, subject to the conditions contained at Annexure ‘A’.

…………………..

T Horton

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 09 August 2022