Crystalland Capital Pty Ltd v Fairfield City Council

[2021] NSWLEC 1364

Land and Environment Court

New South Wales

Medium Neutral Citation:

Crystalland Capital Pty Ltd v Fairfield City Council [2021] NSWLEC 1364

Hearing dates:

Conciliation conference on 26 May and 08 June 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application DA354.1/2020 and rely on the amended plans referred to in Condition 1 of Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,000.00 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Development Application DA354.1/2020 for demolition of existing structures and construction of a two-storey boarding house on Lot 44 DP 862039 known as 55 Vale Street Cabramatta is approved subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – boarding house – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 and 8.10
Environmental Planning and Assessment Regulation 2000, cll 49 and 55
Fairfield Local Environmental Plan 2013
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 55— Remediation of Land

Category:

Principal judgment

Parties:

Crystalland Capital Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/17037

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a boarding house in Cabramatta. The site comprises Lot 44 DP 862039 and is known as 55 Vale Street, Cabramatta (the Land).

2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

4. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 26 May 2021 and concluded on 8 June 2021. I presided over the conciliation conference.

5. 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 would be acceptable to the parties. The signed agreement was subsequently filed on 11 June 2021 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court exercising the function under cl 55 of the Environmental Planning and Assessment Regulation 2000(EPA Regulation) to grant leave to the Applicant to amend the DA and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

6. The amendments reduce the floor space ratio of the development and create significant additional landscaped areas in the front setback along the southern boundary (adjoining the street) and the northern boundary of the site. The amendments also create articulation at the ground floor and improve the car parking arrangements. The garbage bins are now located within the building. A single communal lounge is to be provided with access to a covered outdoor area. I am satisfied that the proposed amendment to the DA is within the scope of the amendment power in cl 55 of the EPA Regulation. The essence of the development the subject of the DA remains the same.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The Applicant is the owner of the Land and is able to make the DA in accordance with cl 49 of the EPA Regulation.

2. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

3. The proposed development is for the purpose of a boarding house.  The Land is within zone R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 (the LEP). Development for the purposes of a boarding house is permissible with development consent on land within that zone.

4. In determining the DA, I have had regard to the objectives of the R2 Low Density Residential zone in the LEP. An objective of that zone is “to provide for the housing needs of the community within a low density residential environment” and the proposed development is consistent with that objective.

5. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (cl 4.4). The height of the proposed development is approximately 8.37 metres which is less than the applicable maximum building height of 9 metres. The floor space ratio of the proposed development is 0.43:1 which is less than the maximum floor space ratio of 0.45:1 which applies to the Land.

6. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP) applies to the Land.

7. Clause 30(1) of the ARH SEPP provides that a consent authority must not consent to boarding house development to which that policy applies unless it is satisfied of each of the matters set out in cll 30(1)(a)–(h). The Statement of Environmental Effects (SEE) assesses the DA against each of these matters and I am satisfied that the proposed development complies with each of them.

8. Clause 30AA of the ARH SEPP provides that a consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential unless it is satisfied that the boarding house has no more than 12 boarding rooms. The proposed development comprises 8 single and 2 double rooms and therefore complies with this requirement.

9. Clause 30A of the ARH SEPP provides that a consent authority must not consent to boarding house development to which the policy applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The proposed building is of a compatible scale and form within the wider streetscape and is consistent with the proposed future character of the area as envisaged by the relevant planning controls. The proposal will present a two-storey residential built form which is consistent with the streetscape. I am satisfied that the proposed development is therefore compatible with the character of the local area.

10. State Environmental Planning Policy No 55—Remediation of Land applies to the Land. The Land has been used for residential purposes for many years and there is no indication that any contaminant generating uses have been carried out on it. The continued use of the Land for residential purposes will not change and I am satisfied that the Land is suitable for the proposed ongoing residential use.

11. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate No 1133231M_02 dated 27 May 2021 issued by Loka Consulting Engineers was submitted with the DA. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met.

12. The DA was publicly notified between 29 September and 13 October 2020. The Council received one submission during this period which raised concerns about the allegedly past unauthorised use of the existing dwelling house on the Land as a boarding house, illegal car parking, overdevelopment and allegedly illegal activities on the Land. These issues have been addressed by the amended design and conditions of consent.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court orders that:

1. The Applicant is granted leave to amend the development application DA354.1/2020 and rely on the amended plans referred to in Condition 1 of Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,000.00 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application DA354.1/2020 for demolition of existing structures and construction of a two-storey boarding house on Lot 44 DP 862039 known as 55 Vale Street Cabramatta is approved subject to the conditions set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (265269, pdf)

Architectural Plans (3084378, pdf)

Landscape Plans (2796674, pdf)

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Decision last updated: 22 June 2021