Cui v Cumberland Council

[2019] NSWLEC 1103

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cui v Cumberland Council [2019] NSWLEC 1103
Hearing dates:	Conciliation conference on 1 March 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [15] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Yi Cui (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/186184
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Cumberland Council (hereafter the Council) of Development Application (DA) DA-47/2018, which seeks to amend an existing DA (2016/10/1) by alterations to the approved two storey boarding house from 9 rooms to 11 rooms with parking, on Lot 5 and 6 in DP 734, also known as 39 Clyde Street, Guildford.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 1 March 2019. I presided over the conciliation conference. There were no objections heard at this conciliation.

4. Following 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 is to uphold the appeal and grant consent to DA-47/2018 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, 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. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the DA (DA-47/2018) under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH 2009), specifically cll 25, 29(2)(e) and (f), 30(1)(a) and 30A; Holroyd Local Environmental Plan 2013 (HLEP 2013), specifically R3 zone objectives; and Holroyd Development Control Plan 2013 (HDCP 2013), specifically relating to landscaping.

7. The approved development (under DA 2016/10/1) includes a two storey boarding house with 9 single bed rooms, as well as parking for two cars and two motorcycles. The amendment to the approved DA relates to: a reduction in the landscape area in the front setback to increase parking for one accessible car space; and an additional two (boarding) rooms as a result of reconfiguration to first and ground floor areas.

8. The site is located within an R3 Medium Density Residential zone, pursuant to HLEP 2013. The approved development, a boarding house, is permissible in the zone and the parties agree that the DA is not inconsistent with the zone objectives.

9. The parties explained that the amended plans and information provided satisfy the relevant requirements as set out in the SEPPARH 2009, HLEP 2013 and HDCP 2013.

10. Specifically, the proposed development is consistent with the requirements of SEPPARH 2009 with regards to size and functionality of boarding, manager and communal rooms.

11. The design of the basement for parking has been demonstrated to be adequate and functional with regards to manoeuvrability and accessibility.

12. There are no adverse amenity impacts as a result of the proposed development that do not satisfy the standards and controls of the HELP 2013 and HDCP 2013, respectively.

13. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans and provided in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979.

14. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

15. The Court orders:

1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 2 of Annexure “A”.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the agreed amount of $3,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, within 28 days of these orders being made.

3. The Appeal is upheld.

4. Development Application No. DA-47/2018 for alterations and additions to an approved two storey boarding house comprising 11 rooms with parking for 3 cars and 2 motorcycles is approved subject to the conditions set out in Annexure “A”.

……………………….

S Bish

Commissioner of the Court

Annexure A (451 KB, pdf)

Architectural Plans (1.39 MB, pdf)