Detissera v Penrith City Council

[2024] NSWLEC 1334

Land and Environment Court

New South Wales

Medium Neutral Citation:

Detissera v Penrith City Council [2024] NSWLEC 1334

Hearing dates:

Conciliation Conference 8 April, 20 and 27 May 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $1,000.00 within 28 days of these orders.

(2)   The appeal is upheld.

(3)   Development Application D20/0726 is determined by grant of consent for the demolition of all existing structures on site and the erection of four (4) townhouses, landscaping, and associated site works at 312 Great Western Hwy, St Marys, subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – affordable rental housing - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulations 2021, s 38

Penrith Local Environmental Plan 2010, cll 4.1, 4.3, 5.10, 7.1, 7.30, Sch 5

State Environmental Planning Policy - (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 10, 14, 15, 16A, 17

State Environmental Planning Policy (Housing) 2021, Sch 7A

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.118, 2.119, 2.120

Texts Cited:

Department of Infrastructure, Planning and Natural Resource, Seniors Living Policy: Urban Design Guidelines for Infill Development, March 2004

Department of Planning, Industry and Environment, Low Rise Housing Diversity Design Guide, July 2020

Category:

Principal judgment

Parties:

Chaminda Bombawala Detissera (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor)(Applicant)
A Avery (Solicitor)(Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Penrith City Council (Respondent)

File Number(s):

2023/294563

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA20/0726 for demolition of existing structures and the construction of 4 townhouses pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Proposed Development) at 312 Great Western Highway, St Marys legally described as Lot 2 in DP 237858 (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, which has been held on 8 April, 20 and 27 May 2024. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of a number of environmental planning instruments and the parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional statement. I now set out a summary of that explanation.

7. The Proposed Development was lodged on 5 November 2020 (Lodgement Date) with the Respondent under the now repealed, State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), specifically pursuant to Division 1, In-fill Affordable Housing. Although the SEPP ARH was repealed on 25 November 2021, the savings provisions included within Sch 7A of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) state that the new Housing SEPP does not apply to a development application made, but not yet determined, on or before the commencement date being the 26 November 2021.

8. The Site has an area of 720.8m² and is located in an R3 Medium Density Residential zone pursuant to the Land Use Table of the Penrith Local Environmental Plan 2010 (PLEP) and the Proposed Development, characterised as “multi-dwelling houses”, is permissible with consent. At the Lodgement Date, cl 4.1 of the PLEP applied to the subdivision of land and prescribed a minimum lot size resulting from the subdivison of land for the purpose of multi-dwelling housing in Zone R3 Medium Density Residential to be 800m². However, the Proposed Development does not seek consent for subdivision and in any event, the ARH SEPP prescribes a minimum lot size of 450m².

9. The Site is subject to a 8.5m maximum Height of Buildings development standard (HOB) pursuant to cl 4.3 of the PLEP and the Proposed Development does not contravene the HOB.

10. The Site is not a heritage item, nor is it located within a heritage conservation area. However, it is located proximate to an item of heritage, namely St Mary Magdalene Anglican Church, Hall, Cemetery and Grounds nominated in Sch 5 of the PLEP (Item No 301), and certain considerations are required pursuant to cl 5.10 of the PLEP regarding heritage conservation. The terms of cl 5.10 of the PLEP are satisfied by the Statement of Environmental Effects filed with the Class 1 Application under Tab 4 which provides at pages 23 and 24 as follows:

“the proposed development will not have a physical or material impact on the item of heritage. Great Western Highway provides ample separation to ensure no physical impacts occur, while the same separation ensures that the new development does not infringe upon the fabric or setting of the item.

Views toward the heritage item remain uninterrupted by the development. No existing views are available from the properties in a southerly direction. The property to the west only has views available from the first floor, street facing balconies, to which no impact occurs.”

11. Consent is sought for earthworks pursuant to cl 7.1 of the PLEP and the Respondent has considered the matters in cl 7.1(3) and explains to the Court that the proposed earthworks are unlikely to have a detrimental impact on environmental functions and processes, existing drainage patterns, or soil stability.

12. The Proposed Development is supported by a BASIX certificate No 1120578M filed with the Class 1 Application at Tab 5 and a Sections & BASIX Notes Plan dated May 2024 (Rev G) prepared by ATJ Architects pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

13. Notwithstanding that cl 7.30 of the PLEP was not applicable as at the date of lodgment of the Proposed Development, the parties have considered and are satisfied that planning and design measures are incorporated to reduce the urban heat island effect that do the following:

(a)    maximise green infrastructure, and

(b)    retain water in the landscape, and

(c)    use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and

(d)    use building, paving and other materials that minimise heat impacts, and

(e)    reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.

14. The above state of satisfaction is achieved by the parties because of the updated landscape plan prepared by RFA Landscape Architects dated May 2024 (Rev F) that includes and retains significant vegetation including canopy trees and green ground cover.

15. Clause 10 of the ARH SEPP provides that the ARH SEPP applies to the Proposed Development because:

1. It is permitted with consent under the PLEP;

2. The Site is not a heritage item nor is it subject of an interim heritage order;

3. One dwelling is proposed as affordable, being Unit 1, and this unit is greater than 20% of the total proposed GFA.; and

4. The Site is located in an accessible area as site is 380m walking distance from the St Marys Community Centre, Mamre Road bus stop located to the west of the site and 400m from the Queen Street before Carsons Lane bus stop.

16. In relation to the standards that cannot be used to refused consent pursuant to cl 14 of the ARH SEPP, the parties explain as follows:

1. Subclause 1(b) – the site is over 450m² (it is 720.8m²).

2. Subclause 1(c) – more than 30% of the site is landscaped.

3. Subclause 1(d) – more than 15% of the site is deep soil zone.

4. Subclause 1(e) – living rooms and private open spaces for more than 70% of the dwellings receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter.

5. Subclause 2(a) – The proposed development comprises two (2) x three (3) bedroom townhouses and two (2) x two (2) bedroom townhouses. Per the ARH SEPP, car parking is required at a rate of 1.5 car spaces per 3 or more bedrooms and 1 parking space is provided for each dwelling containing 2 bedrooms. A total of five (5) spaces are required and provided.

6. Subclause 2(b) - All units comply with the minimum unit sizes.

17. Clause 15 of the ARH SEPP relates to design considerations. The parties have considered and are satisfied that the proposed development is consistent with Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004 and the Low Rise Housing Diversity Design Guide.

18. Clause 16A of the ARH SEPP requires the consent authority to take into consideration whether the design of the development is compatible with the character of the local area. The parties agree that the Proposed Development, as amended, is compatible with the character of the local area.

19. Clause 17 of the ARH SEPP requires that the dwelling proposed to be used for the purposes of affordable housing (being Unit 1 shown on Site Plan, 1703 ap01 (Rev G) prepared by ATJ Architects dated May 2024) will be used for the purposes of affordable housing, and all accommodation that is used for affordable housing will be managed by a registered community housing provider, and a restriction to that effect will be registered, before the date of the issue of the occupation certificate, against the title of the property. A suitable condition, condition 71, has been proposed to give effect to this clause.

20. In accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the parties agree that consideration has been given to whether the land is contaminated. The Proposed Development is on land which has historically been used for residential purposes and is unlikely to contain any contamination. Accordingly, no further investigation is required for the purpose of s 4.6.

21. The Site has a frontage to the Great Western Highway, a classified road, and is the sole access point to the site. In accordance with s 2.118(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the Proposed Development was referred to TfNSW for concurrence and on 24 March 2022, TfNSW provided a response confirming that it had no objections subject to the imposition of conditions of consent. The parties have taken this response into consideration as required under s 2.118(2).

22. Section 2.119 of the Transport and Infrastructure SEPP provides that a consent authority must not grant consent unless it is satisfied that:

(a)    where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)    the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)    the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

23. The Applicant relies on a traffic report by Traffix dated 16 October 2020 and a subsequent letter dated 3 March 2022, both filed with the Class 1 Application, and the report concludes, at page 10, that the anticipated traffic generation will have no noticeable traffic impacts on the road network. This, together with the sole access to the Site being from the classified road, satisfies the terms of s 2.119 of the Transport and Infrastructure SEPP.

24. As the Proposed Development provides residential accommodation and Site is located adjacent to a road corridor (being the Great Western Highway) which has an annual average daily traffic volume of more than 20,000 vehicles, the terms of s 2.120(3) of the Transport and Infrastructure SEPP must be satisfied regarding acoustic amenity. Section 2.120 provides that the consent authority must not grant consent to the Proposed Development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

(a)     in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am,

(b)     anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

25. The Applicant relies on an acoustic assessment prepared by Acouras Consultancy dated 15 July 2020 filed with the Class 1 Application at Tab 13 and concludes, at page 10, that subject to implementation of the recommendations set out in the report, the Proposed Development is predicted to comply with the acoustic requirements listed at [24].

26. The Proposed Development seeks consent for landscaping which includes tree removal. An Arboricultural Impact Assessment and Tree Management Plan dated 26 August 2017 prepared by Redgum Horticultural was filed with the Class 1 Application at Tab 14. The report identified a number of trees to be removed to facilitate the proposed works. The Landscape Plan Drawing No L-01 Issue F dated 21 May 2024 identifies the trees to be removed and this plan is listed as a consent drawing in Annexure A and the Respondent has included a number of specific conditions to ensure that the retained trees are adequately protected during the construction and for the life of the development.

27. The Site is located outside of the Western Sydney Aerotropolis, however, the State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 (Aerotropolis SEPP) includes a map that relates to wildlife buffer areas and that map shows the Site is within a “wildlife buffer zone’ of the airport. The Aerotropolis SEPP was repealed by the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 which took effect from 1 March 2022. The provisions of the Aerotropolis SEPP were transferred into Chapter 4 of the Western Parkland SEPP. However, the Western Parkland SEPP included a savings and transitional provision at cl. 4.51 which provides:

(1)  A development application for development on land to which this Chapter applies that was lodged and not finally determined before the commencement of this Chapter is to be determined as if this Chapter had not commenced.

28. As such, the given the DA was lodged prior to the commencement of the Western Parkland SEPP it is to be assessed against the relevant provisions of the Aerotropolis SEPP

29. Consideration has been given to cl. 21 of the Aerotropolis SEPP and the Proposed Development. The Proposed Development is not one of the types of uses that warrant additional consideration under the Aerotropolis SEPP with regards to wildlife and the operation of the airport.

30. The Site is also identified as being located within the Obstacle Limitation Surface Map. Clause 24 of the Aerotropolis SEPP relates to development that would penetrate the prescribed air space for the airport and be a controlled activity. The Proposed Development neither penetrates the prescribed air space nor is it a controlled activity.

31. I am 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. I adopt the reasons given by the parties in accordance with this judgment.

32. 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.

Notations:

33. The Court notes:

1. that Penrith City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulations 2021 to the Applicant amending Development Application DA20/0726 in accordance with the following plans and documents:

Plan and Revision	Plan Name	Date	Prepared by
Ap01 (Rev G)	Site Plan	May 24	ATJ Architects
Ap02 (Rev G)	Floor Plans	May 24	ATJ Architects
Ap03 (Rev G)	Elevations	May 24	ATJ Architects
Ap04 (Rev G)	Sections & BASIX Notes	May 24	ATJ Architects
Ap05 (Rev G)	Shadow Diagrams June 21	May 24	ATJ Architects
Ap06 (Rev G)	Shadow Diagrams June 21	May 24	ATJ Architects
Ap09 (Rev G)	Demolition Plan	May 24	ATJ Architects
L-01 (Rev F)	Landscape Plan	May 24	RFA Landscape Architects
9628a	Addendum to Redgum Horticultural report	30 April 2024	Redgum Horticultural

(“the amended DA documents”)

Orders:

34. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $1,000.00 within 28 days of these orders.

2. The appeal is upheld.

3. Development Application D20/0726 is determined by grant of consent for the demolition of all existing structures on site and the erection of four (4) townhouses, landscaping, and associated site works at 312 Great Western Hwy, St Marys, subject to the conditions contained at Annexure A.

E Espinosa

Commissioner of the Court

**********

Annexure A

Decision last updated: 19 June 2024