Ecostay Pty Ltd v Penrith City Council

Case •

[2024] NSWLEC 1842

•

30 December 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Ecostay Pty Ltd v Penrith City Council [2024] NSWLEC 1842
Hearing dates: Conciliation conference on 20 December 2024
Date of orders: 30 December 2024
Decision date: 30 December 2024
Jurisdiction:Class 1
Before: Horton C
Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application No. DA23/0946 (PAN-384803) and rely upon the amended plans and documents in Annexure A.

(2) The Applicant is to pay the Respondent’s costs throw away by reason of the amendment of development application No DA23/0946 (PAN-384803) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $15,000 to be paid within 28 days of these orders.

(3) The appeal is upheld.

(4) Development consent is granted to development application No. DA23/0946 (PAN-384803) for construction of a three-storey co-living development with a total of 19 rooms at 29-31 Castlereagh Street, Penrith (Lot 2 in Deposited Plan 1190616), subject to conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: co-living development in R4 high density residential zone – conciliation conference – agreement between 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 Regulation 2021, s 38

Penrith local Environmental Plan 2010, cll 4.3, 5.10, 5.21, 7.1, 7.4, 7.6, 7.7, 7.30

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, 6.6, 6.7, 6.8, 6.9, Pt 6.2

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

State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69

Texts Cited:

Penrith Development Control Plan 2014

Penrith Community Engagement Policy, Strategy and Participation Plan

Apartment Design Guide

Penrith Development Control Plan 2014

Category:Principal judgment
Parties: Ecostay Pty Ltd (Applicant)
Penrith City Council (Respondent)
Representation:

Counsel:
M Jaku (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2024/189554
Publication restriction: Nil

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 Penrith City Council (the Respondent) of development application DA23/0946 that originally sought consent for the construction of a five storey co-living housing development with 29 rooms, ground level and second floor communal open space and ground level/undercroft car park for 6 cars and associated civil works and landscaping at 29-31 Castlereagh Street, Penrith.

  2. On 20 December 2024, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

  3. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and subject to amended plans and other documents for which leave is sought. A signed agreement was submitted to the Court on 11 December 2024, in accordance with s 34(10) of the LEC Act.

  4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

  5. 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.

  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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

  7. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

  8. The Development Application was lodged on 30 October 2023, with the consent of the owners of the site, and publicly notified between 13 November and 27 November 2023, in accordance with the Penrith Community Engagement Policy, Strategy and Participation Plan 2022.

State Environmental Planning Policy (Housing) 2021

  1. The site is located in an area identified in the Penrith Local Environmental Plan 2010 (PLEP) as R4 High Density Residential, in which co-living is permissible by operation of s 67 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) that permits development for such purposes where residential flat buildings are also permitted, as is the case here.

  2. The proposed development complies with the non-discretionary standard at s 68 of the Housing SEPP, and with those standards set out at s 68(1). When those matters at s 68(2) of the Housing SEPP are considered, the setbacks generally comply with minimum setback requirements contained in the Penrith Development Control Plan 2014 (PDCP), and with the building separation distances at Part 3F of the Apartment Design Guide. The communal living area receives at least 3 hours of direct solar access during the prescribed period and parties advise the design of the building is compatible with the desired future character of an area undergoing transition.

  3. I am also satisfied that those standard for co-living housing at s 69 are achieved by the development, noting that an appropriate workplace for the manager is proposed by way of an agreed condition of consent, within the ground floor communal living area.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent. A Tree Inspection Report prepared by Treehaven Enviroscapes dated 18 October 2024 assesses 13 trees on the subject site, and on adjoining sites, proposing the removal of Tree T2.

  2. The site is located within the Hawkesbury-Nepean catchment. As such, Part 6.2 of the Biodiversity SEPP applies to require the Court to be satisfied, at s 6.6, that the effect on water quality will be as close as possible to neutral or beneficial, and that water flow into a natural waterbody will be minimised. The Stormwater Plans prepared by Telford Civil depict a reduction in suspended solids, phosphorus, nitrogen and in gross pollutants, to satisfy me that water quality will be as close as possible to neutral or beneficial. I also note the installation of filtration cartridges and other filter devise are proposed in onsite detention and stormwater pits, with post development water flow reduced by 25%, which also satisfies me that water flow is minimised.

  3. Given the controls on water quality and water flow, I am also satisfied of those matters at s 6.7 of the Biodiversity SEPP to the effect there will be no direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals, or vegetation to a minimum, and no adverse impact on aquatic reserves, or in terms of erosion.

  4. Neither will the proposed development have an impact on periodic flooding in terms set out in s 6.8, nor on recreational land uses or access to public land, in terms set out in s 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. In respect of contamination, a Preliminary Site Investigation and Detailed Site Investigation Report (PSI/DSI) prepared by Labcore dated 21 October 2024 concludes the site has contaminated soil that, when tested, was below the relevant criteria. An unexpected finds protocol, recommended in the conclusion of the PSI/DSI, is incorporated into agreed conditions of consent. As such, I am satisfied the site is suitable for the development proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Penrith Local Environmental Plan 2010

  1. The objectives for development in the R4 zone are as follows:

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

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

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

•  To ensure that a high level of residential amenity is achieved and maintained.

•  To encourage the provision of affordable housing.

•  To ensure that development reflects the desired future character and dwelling densities of the area.

  1. The proposed development complies with the height standard of 18m applicable to the site according to the relevant map at cl 4.3(2) of the PLEP.

  2. While the site is not identified as an item of heritage significance, it is located within the Hornseywood Avenue Conservation Area (Hornseywood). On the basis of the Statement of Heritage Impact prepared by Heritage 21, dated October 2023, the parties agree the proposal is acceptable in terms consistent with cl 5.10 of the PLEP.

  3. On the basis of a letter prepared by Telford Civil dated 18 December 2024, I accept that the site is not flood affected and does not fall within a designated flood planning area. As such, flood planning provisions at cl 5.21 of the PLEP do not apply.

  4. While the development does not propose excavation for a basement, earthworks are shown on a cut and fill plan, comprising an area of 887m2. I have considered those matters to be considered at cl 7.1(3) of the PLEP and, on the basis of those plans and other documents listed, I find those matters adequately addressed:

  1. The Geotechnical Investigation Report prepared by Brink & Associates dated 2004

  2. The Waste Management Plan prepared by Planning for Less Waste, dated 28 September 2023

  3. The Cut and Fill Diagram at drawing A019, prepared by Janssen Designs and dated 14 November 2024

  4. The Stormwater Concept Plans prepared by Telford Civil

  5. The PSI/DSI cited at [15]

  6. Landscape Plans prepared by Zenith Landscape Designs

  1. Clause 7.4 of the PLEP requires regard to be had to certain principles of sustainable development. On the basis of the explanation provided in the Amended Statement of Environmental Effects dated 20 December 2024, and the agreed conditions of consent requiring shading devices to western openings and openable windows to rooms in the development, I accept consideration has been given to those matters required to be considered.

  2. The parties advise the Court that as minimal excavation is proposed on the site, the development will not impact upon, or be impacted by, salinity processes as understood by those terms set out in Part C4 of the PDCP, and so achieving cl 7.6 of the PLEP.

  3. As the site is within a highly developed area of the Penrith City Centre, I am satisfied the development will be connected to those services nominated at cl 7.7 of the PLEP.

  4. Consent is precluded by cl 7.30(3) unless an opinion of satisfaction can be formed in respect of measures to reduce urban heat island effects. I note the landscaped area comprises 50.5% of the site area, in excess of the requirement for 35%, representing permeable surfaces that retain water in the landscape. Next, while the parties are comfortable with the dark surfaces depicted on coloured rendered images, which might be regarded as heat inducing, light coloured materials predominate and agreed conditions of consent require windows to be shaded, and to open, despite elevations showing otherwise. As such, I am satisfied that the development incorporates design measures to reduce the urban heat island effect.

Conclusion

  1. 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.

  2. 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.

  3. The Court notes that:

  1. Penrith City Council, as the relevant consent authority, has agreed, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending Development Application No. DA23/0946 (PAN-384803) in accordance with the plans and documents listed in Annexure A.

  2. The amended plans and other documents in Annexure A were filed with the Court on 20 December 2024.

Orders

  1. The Court orders that:

  1. Leave is granted to the Applicant to amend Development Application No. DA23/0946 (PAN-384803) and rely upon the amended plans and documents in Annexure A.

  2. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA23/0946 (PAN-384803) pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the agreed sum of $15,000 to be paid within 28 days of these orders.

  3. The appeal is upheld.

  4. Development consent is granted to Development Application No. DA23/0946 (PAN-384803), for the construction of a three (3) storey co-living development with a total of 19 rooms at 29 – 31 Castlereagh Street, Penrith (Lot 2 in Deposited Plan 1190616), subject to the conditions of consent in Annexure B.

…………………..

T Horton

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 07 January 2025

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