Faraj v Georges River Council

[2020] NSWLEC 1674

Land and Environment Court

New South Wales

Medium Neutral Citation:

Faraj v Georges River Council [2020] NSWLEC 1674

Hearing dates:

Conciliation conference on 11 December 2020

Date of orders:

23 December 2020

Decision date:

23 December 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [12]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Hurstville Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55 – Remediation of Land

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Hurstville Development Control Plan No. 1

Category:

Principal judgment

Parties:

Hassib Faraj (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Ede (Solicitor) (Applicant)
S Hill (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/43296

Publication restriction:

No

Judgment

1. COMMISSIONER: Hassib Faraj (the Applicant) has appealed the refusal by Georges River Council (the Respondent) of his development application DA2018/309, made with owner’s consent, seeking consent for demolition of existing structures and construction of a two storey boarding house with basement car parking (the Proposed Development) at 11 Arnold Street, Peakhurst (the Subject Site).

2. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 11 December 2020, and I presided over that conciliation conference.

4. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy. No site view was undertaken during the conference, and no objectors had sought to make representations to the Court as part of the conciliation conference.

5. 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 consent to the Applicant’s development application, subject to conditions.

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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. the Subject Site is zoned R2 Low Density Residential pursuant to the provisions of cl 2.3 of Hurstville Local Environmental Plan 2012 (HLEP), and development for the purposes of a boarding house is permissible with consent on the Subject Site under its R2 zoning;

2. pursuant to the provisions of cl 4.3 of HLEP, the maximum height of buildings development standard applicable to the Subject Site is 9m, and the Parties agree that the maximum height of the Proposed Development is 7.31m and complies with the applicable height of buildings development standard;

3. pursuant to the provisions of cl 4.4 of HLEP, the maximum floor space ratio (“FSR”) permitted on the Subject Site is 0.6:1, and the Parties agree that the FSR of the Proposed Development is 0.59:1 and complies with the applicable FSR development standard;

4. the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”) apply to the Proposed Development on the Subject Site, and in relation to this the parties have advised, and I accept, that:

1. clause 30 of the SEPP ARH contains standards in relation boarding houses and a consent authority, or the Court on appeal, must not grant consent unless it is satisfied that the standards are met. The Parties have confirmed, and I am satisfied, that the standards required of a boarding house within cl 30(1) of SEPP ARH are met by the Proposed Development;

2. the Proposed Development, as amended, is compatible with the character of the local area, as required under the provisions of cl 30A of the SEPP ARH; and

3. pursuant to cl 54C of the SEPP ARH, cl 30AA of the SEPP ARH, which commenced on 28 February 2019, does not apply to the Applicant’s development application DA2018/309 which was lodged with Council on 27 July 2018. Notwithstanding that cl 30AA does not apply to the Proposed Development, the Parties have advised that the Proposed Development has no more than 12 boarding rooms and it complies with cl 30AA of SEPP ARH in any event.

5. the Proposed Development is subject to the provisions of State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”), and the Parties have considered whether the Subject Site on which the Proposed Development is contaminated. The Applicant’s class 1 application included a Preliminary Site Investigation, prepared by Benviron Group, dated July 2018 (Phase 1 SEPP 55 Report), which confirmed that the Subject Site is suitable for the use intended by the Proposed Development subject to implementation of the recommendations made within the Phase 1 report. Those recommendations require that any contaminated soil is to be removed from the Subject Site and that an asbestos clearance certificate will be provided following completion of proposed demolition works that form part of the Proposed Development. The Parties have confirmed, and I am satisfied, that the Subject Site:

1. will be suitable for the purpose for which the Proposed Development is to be carried out after the recommended remediation works have been completed;

2. will be remediated before the land is used for the purposes of a boarding house; and

3. does not require further consideration in relation to the provisions of cl 7 of SEPP 55.

6. the Applicant’s Proposed Development, as amended, is accompanied by BASIX Certificate 1147564M dated 22 October 2020 which has been provided in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

7. the provisions of Hurstville Development Control Plan No. 1 (“HDCP”) apply to the Proposed Development. The Parties advise, and I accept, that HDCP provides no controls that are specific for the purposes of a development of boarding houses, other than those in Sections 3.1 - Vehicle Access Parking & Manoeuvring and 3.3 - Access & Mobility. The Parties advise, and I accept, that the Proposed Development either complies with these controls or is consistent with the objectives of the controls; and

8. the Proposed Development was notified by the Respondent as required under the provisions of the EP&A Act, the Regulation, and HDCP, and the Parties have considered the submissions made in response to that notification.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

9. I am further 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.

10. 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.

11. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court orders that:

1. leave is granted to the Applicant to rely on the following amended plans:

Description	Drawing No.	Date	Revision	Prepared by
Architectural plans
Site Plan	S34.04	November 2020	C	Monument Design Partnership
Basement Plan	S34.05	November 2020	C
Ground Floor Plan	S34.06	November 2020	C
First Floor Plan	S34.07	November 2020	C
Elevation North/South	S34.09	November 2020	C
Elevations East/West	S34.010	November 2020	C
Internal Elevations	S34.011	November 2020	C
Landscape Plan	S34.019	November 2020	C
Additional information/site calculations	S34.021	November 2020	C
Other documents
Plan of Management	P3379	16.10.20	NA	GAT & Associates
Waste Management Plan	1808-A-WMP	October 20	NA	M Plan
BASIX Certificate	1147564M	22.10.2020	NA	Greenworld Architecture Drafting

2. the Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the agreed amount of $7,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 by 23 December 2020;

3. the appeal is upheld;

4. development application DA2018/309 for the demolition of existing structures and construction of a two storey boarding house with 10 rooms plus manager's dwelling and basement car parking is approved subject to the conditions contained in Annexure "A".

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (341271, pdf)

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Decision last updated: 23 December 2020