Edward 9 Pty Ltd v Canterbury-Bankstown Council

[2019] NSWLEC 1612

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Edward 9 Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1612
Hearing dates:	Conciliation conference on 11 November 2019
Date of orders:	10 December 2019
Decision date:	10 December 2019
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Development consent is granted to Development Application No DA-179/2018 for the demolition of existing structures and the construction of a two storey plus attic, 14 room (including manager’s room) boarding house accommodating a total of 26 lodgers plus one manager, with one communal rooms, 7 car parking spaces, 3 motorbike spaces and 3 bicycle spaces on the land at Lot 5 in Deposited Plan 215816 (10 Albert Road, Croydon Park) is approved subject to the conditions of consent annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT– Demolition of existing structures and construction of boarding house – conciliation conference – agreement between the parties – orders
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Edward 9 Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/262835
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 179/2018) for the demolition of existing structures and construction of a two storey plus attic, 14 room (including manager’s room) boarding house accommodating a total of 26 lodgers plus one manager, with one communal room, 7 car parking spaces, 3 motorbike spaces and 3 bicycle spaces at Lot 5 Deposited Plan 215816 known as 10 Albert Road, Croydon Park (the site).

2. On 10 November 2019, I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

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. The proposed decision was to uphold the appeal and grant development consent to the development application subject to conditions.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The following jurisdictional prerequisites relevant in this case have been satisfied so this function can be exercised:

1. the site is zoned R4 pursuant to Canterbury Local Environmental Plan 2012 (CLEP) pursuant to which boarding houses are a permissible use;

2. although on 20 September 2019 CLEP was amended to provide for a minimum lot size and dimension for development for boarding houses (cl 4.1C), that provision does not apply to this development application by virtue of the savings provision in CLEP (cl 1.8A);

3. the proposed development does not contravene any development standard in the CLEP or any other applicable environmental planning instrument. There is no non-compliance with the Height and Floor Space Ratio controls in CLEP and State Environmental Planning Policy (Affordable Rental Housing) 2009;

4. a sulphate soils management plan has been provided in accordance with cl 6.1 CLEP;

5. consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated. Material has been provided in satisfaction of cl 7 of SEPP 55;

6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. A BASIX certificate has been provided in compliance with that Policy.

7. Consideration has been given as to whether the design of the proposed development is compatible with the character of the local area as required by cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, on the basis of the content of the Statement of Environmental Effects lodged with the Class 1 Application as well as the amendments made to the design of the boarding house.

6. 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.

7. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA-179/2018 for the demolition of existing structures and the construction of a two storey plus attic, 14 room (including manager’s room) boarding house accommodating a total of 26 lodgers plus one manager, with one communal rooms, 7 car parking spaces, 3 motorbike spaces and 3 bicycle spaces on the land at Lot 5 in Deposited Plan 215816 (10 Albert Road, Croydon Park) is approved subject to the conditions of consent annexed hereto and marked “A”.

Addendum made on 3 January 2020

9. The parties have requested an amendment to the conditions by adding the date of the landscape plan in condition 3 which had been inadvertently omitted in the conditions provided to the Court. Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), I amend the orders and conditions by making that change. The updated conditions are now annexed to this judgment.

……………………

P Clay

Acting Commissioner of the Court

Annexure A (128 KB, pdf)

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Amendments

03 January 2020 - See Addendum made on 3 January 2020

Decision last updated: 03 January 2020