Elford v Cumberland Council
[2020] NSWLEC 1400
•31 August 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Elford v Cumberland Council [2020] NSWLEC 1400 Hearing dates: Conciliation conference on 1 and 21 July, 3, 17 and 21 August 2020 Date of orders: 31 August 2020 Decision date: 31 August 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that:
(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.
(2) Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent’s s8.15(3) costs thrown away in the agreed amount of $4,500 to be paid with 28 days of the date of these Orders.
(3) The appeal is upheld.
(4) Development application DA-338/2019 seeking the demolition of existing structures and construction of a boarding housing development over basement car parking is approved subject to the conditions in Annexure A.
Catchwords: DEVELOPMENT APPLICATION – boarding house development – agreement between the parties – conciliation conference – orders
Legislation Cited: Auburn Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environment Planning Policy (Infrastructure) 2007
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
Category: Principal judgment Parties: Thomas Elford (Applicant)
Cumberland Council (Respondent)Representation: Counsel:
Solicitors:
V Conomos (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)
Conomos Legal (Applicant)
Cumberland Council (Respondent)
File Number(s): 2019/388973 Publication restriction: No
Judgment
-
COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-338/2019 by Cumberland Council (the Respondent), seeking consent for the demolition of existing structures and construction of a boarding house development over basement car parking (the proposed development) at 30 Queen Street, Auburn otherwise known as Lot 4 in DP 662697 (the site).
-
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 July 2020. I presided over the conciliation conference.
-
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 conditional development consent to the development application.
-
The terms of the agreement required the amendment of plans and confirmation of matters in respect of neighbouring properties for which I granted an adjournment. The conciliation conference was reconvened on a number of occasions on 21 July 2020, 3 August 2020, 17 August 2020 and 21 August 2020.
-
A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 August 2020.
-
The parties ask me to approve their decision as set out in the s34 agreement before the Court. 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 s34 agreement.
-
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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:
The site is located within the B4 Mixed Use zone identified in the Auburn Local Environmental Plan 2010 (ALEP). The proposed use is defined as boarding house development and is permissible with consent in the B4 zone. Demolition is permissible pursuant to cl 2.7 of the ALEP.
The objectives of the B4 zone are:
To provide a mixture of compatible land uses.
To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.
To encourage high density residential development.
To encourage appropriate businesses that contribute to economic growth.
To achieve an accessible, attractive and safe public domain.
The site is marked as Class 5 land on the Acid Sulfate Soils Map at cl 6.1 of the ALEP. The site is approximately 400m from Class 2 land however as no works are proposed below 5m Australian Height Datum, I am satisfied that an acid sulfate soils management plan is not required.
Clause 6.5 of the ALEP requires the consent authority to be satisfied of access to certain essential services. The parties are satisfied, as am I, that essential services are available or can be made available.
The State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), contains standards at cl 29 that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards.
I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP.
On the basis of the following, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land:
the land is not within an investigation area;
development for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines is not known to have been carried out on the land;
historic zoning controls for the land did not make lawful the carrying out of activities nominated in Table 1.
The proposed development requires excavation within 2m of an electricity distribution pole. Clause 45 of State Environment Planning Policy (Infrastructure) 2007 requires written notice of the development to be given to the electricity supply authority. I note that written notice was given to Ausgrid and no response was received, either before or after the 21 day period permitted for a response.
Finally I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).
-
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.
-
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.
-
The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:
The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.
Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent’s s8.15(3) costs thrown away in the agreed amount of $4,500 to be paid with 28 days of the date of these Orders.
The appeal is upheld.
Development application DA-338/2019 seeking the demolition of existing structures and construction of a boarding housing development over basement car parking is approved subject to the conditions in Annexure A.
…………………..
T Horton
Commissioner of the Court
Annexure A (409310, pdf)
Architecture Plans (7063349, pdf)
**********
Decision last updated: 31 August 2020
0
0
8