Cosmic Endeavour Pty Ltd v Maitland City Council

[2020] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cosmic Endeavour Pty Ltd v Maitland City Council [2020] NSWLEC 1206
Hearing dates:	Conciliation conference on 20 March 2020
Date of orders:	06 May 2020
Decision date:	06 May 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court Orders: (1) The Court grants leave to the Applicant to rely upon the amended plans and documents listed in Annexure ‘A’. (2) The appeal is upheld. (3) Development Application No. DA/2019/313 for Torrens Title subdivision of one (1) into two (2) Lots, demolition of garage/construction of carport and construction of an eight (8) unit, two (2) storey boarding house (Affordable Housing) on land identified as Lot 2 in DP 793753 and known as 3 Fairview Street, Rutherford, is approved subject to the conditions included at Annexure ‘B’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Category:	Principal judgment
Parties:	Cosmic Endeavour Pty Ltd (Applicant) Maitland City Council (Respondent)
Representation:	Counsel: B Dyer (Solicitor) (Applicant) T Pickup (Solicitor) (Respondent) Solicitors: Holding Redlich (Applicant) Local Government Legal (Respondent)
File Number(s):	2019/366929
Publication restriction:	No

Judgment

1. COMMISSIONER: Cosmic Endeavour Pty Ltd (the Applicant) has appealed the decision of Maitland City Council (the Respondent) to refuse its development application for Torrens Title subdivision of one lot into two lots, demolition of existing structures, construction of an eight unit. Two storey boarding house (the development consent) at 3 Fairview Street, Rutherford (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 20 March 2020 by teleconference, and I have presided over the conciliation conference.

5. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant’s modification application, subject to conditions.

6. 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 EP&A to grant consent to the modification application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified that there are jurisdictional prerequisites of relevance in these proceedings in relation to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), and they have advised, and I accept, that these matters have been satisfied for the following reasons:

1. the Parties agree that the requirements of cl 29 of (SEPP ARH), relating to standards that cannot be used to refuse consent concerning the provision of solar access, private open space, landscaping, parking and building height, have been satisfied through the provision of amended plans and the inclusion of conditions of consent.

2. the Parties agree that the requirements of cl 30(1) of SEPP ARH, relating to standards for boarding houses, have been satisfied, and in particular that the Proposed Development provides:

1. a communal living room and boarding rooms with the required gross floor area;

2. adequate bathroom and kitchen facilities;

3. for the use of each boarding rooms by no more than two adult lodgers; and

4. the required parking spaces for bicycles and motorcycles.

3. the Parties agree that the requirements of cl 30A of SEPP ARH, relating to character of the local area, and which character the Court is required to take into consideration in determining the appeal, has been taken into consideration.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

9. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. 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.

11. The Court orders:

1. The Court grants leave to the Applicant to rely upon the amended plans and documents listed in Annexure ‘A’.

2. The appeal is upheld.

3. Development Application No. DA/2019/313 for Torrens Title subdivision of one (1) into two (2) Lots, demolition of garage/construction of carport and construction of an eight (8) unit, two (2) storey boarding house (Affordable Housing) on land identified as Lot 2 in DP 793753 and known as 3 Fairview Street, Rutherford, is approved subject to the conditions included at Annexure ‘B’.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (7.93 MB)

Annexure B (76.2 KB)

**********