Freedom Development Group Pty Ltd v Lane Cove Municipal Council

[2021] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:

Freedom Development Group Pty Ltd v Lane Cove Municipal Council [2021] NSWLEC 1416

Hearing dates:

Conciliation conference on 14 July 2021

Date of orders:

23 July 2021

Decision date:

23 July 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to rely on amended plans and materials as follows:

(a)   The amended architectural plans prepared by Urban Link as referenced in Condition 1 of Annexure A;

(b)   Amended landscape plans prepared by Melissa Wilson Landscape Architects as referenced in Condition 1 of Annexure A;

(c)   The Waste Management Plan prepared by Dickens Solutions dated June 2021; and

(d)   BASIX certificate No. 1112919M_02 dated 13 April 2021 prepared by Max Brightwell.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application 91/2020 for demolition of existing structures, removal of 11 trees and vegetation and construction of a 4 storey boarding house containing 34 double rooms (including 3 accessible rooms and 1 manager’s room), 1 communal living room and communal open space over 1 level of basement car parking containing 9 parking spaces (including 4 car share and 1 accessible space), 8 motorcycle spaces and 8 bicycle spaces and associated landscaping and stormwater works on the land at 28 Longueville Road, Lane Cove (being Lot 1 DP 1055994).

Catchwords:

DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, s 34

Lane Cove Local Environmental Plan 2009, cll 4.3, 4.4, 6.1, 6.1A

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A

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

State Environmental Planning Policy (Infrastructure) 2007, cl 104, Schedule 3

Category:

Principal judgment

Parties:

Freedom Development Group Pty Ltd (Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/258092

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA 91/2020) for the demolition of existing structures and tree removal, and the construction of boarding house development at 28 Longueville Road, Lane Cove and legally described as Lot 1 DP 1055994 (the land). The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. 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 on 14 July 2020. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1. The development application was made with the consent in writing of the owner of the land in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000.

2. The proposed development is for the purposes of a “boarding house” as defined in the Dictionary to Lane Cove Local Environmental Plan 2009 (LEP 2009). The land is zoned R4 High Density Residential, boarding houses are a permissible use in the zone. In determining the development application, I have had regard to the objectives of the zone.

3. Pursuant to the Height of Buildings Map referred to in cl 4.3(2) of LEP 2009, the maximum permissible height of buildings on the site is 12 metres. The proposed development has a total maximum height of 11.6 metres.

4. Pursuant to the Floor Space Ratio Map referred to in cl 4.4(2) of LEP 2009, the site is subject to a maximum floor space ratio of 0.8:1. However, cl 29(1)(c)(i) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”) provides that consent cannot be refused to a development to which Division 3 applies if the floor space ratio is no more than 0.5:1 higher than the existing maximum permissible floor space ratio. The proposed development (as amended) has a floor space ratio of 1.2:1, which does not exceed the maximum in cl 4.4(2) of LEP 2009 with the bonus in cl 29(1)(c)(i) of SEPP ARH.

5. The site is not identified as being impacted by acid sulfate soils and as such the provisions of cl 6.1 of LEP 2009 do not apply.

6. The development application involves earthworks, and the matters in cl  6.1A(3) of LEP 2009 have been taken into consideration having regard to the Applicant’s Geotechnical Report prepared by Morrow Geotechnics Pty Ltd dated 15 December 2020.

7. Clause 30 of SEPP ARH sets out the standards for boarding houses, which the proposed development complies with as follows:

1. At least one communal living room is provided as required by cl 30(1)(a) of SEPP ARH.

2. No boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres as required by cl 30(1)(b) of SEPP ARH.

3. No boarding room is proposed to be occupied by more than 2 adult lodgers as required by cl 30(1)(c) of SEPP ARH, which is also confirmed by condition 123.

4. The boarding house has the capacity to accommodate more than 20 lodgers, and an onsite dwelling for a boarding house manager is proposed as required by cl 30(1)(d) of SEPP ARH.

5. The land is primarily zoned for residential purposes and accordingly the requirements of cl 30(1)(g) of SEPP ARH do not apply.

6. The proposed development provides 8 motorcycle spaces and 8 bicycle spaces, meeting the requirement at cl 30(1)(h) of SEPP ARH.

7. In determining the development application I have given consideration as to whether the design of the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH. The parties agree that, as a result of amendments to the plans which increase the side setbacks of the built form, the design is compatible with the local character. I accept their agreement.

8. The development application is “traffic-generating development” in accordance with cl 104 and Column 3 of Schedule 3 of State Environmental Planning Policy (Infrastructure) 2007. In accordance with cl 104(3), the original development application and the development application as amended by the Applicant on 5 May 2021 were referred by the Respondent to Transport for NSW (TfNSW). On 15 June 2021, TfNSW confirmed that it raised no objections to the development application (as amended) subject to the requirements in its letter dated 4 March 2021.

9. Having regard to the Preliminary Site Investigation report, prepared by Alliance Geotechnical dated 8 July 2020 I am satisfied that the land is not likely to be contaminated, and is suitable for the purpose for which the development is proposed to be carried out.

10. As required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the development application (as amended by the Applicant on 5 May 2021) is accompanied by an updated BASIX Certificate.

11. The development application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders:

1. The Applicant is granted leave to rely on amended plans and materials as follows:

1. The amended architectural plans prepared by Urban Link as referenced in Condition 1 of Annexure A;

2. Amended landscape plans prepared by Melissa Wilson Landscape Architects as referenced in Condition 1 of Annexure A;

3. The Waste Management Plan prepared by Dickens Solutions dated June 2021; and

4. BASIX certificate No. 1112919M_02 dated 13 April 2021 prepared by Max Brightwell.

2. The appeal is upheld.

3. Development consent is granted to development application 91/2020 for demolition of existing structures, removal of 11 trees and vegetation and construction of a 4 storey boarding house containing 34 double rooms (including 3 accessible rooms and 1 manager’s room), 1 communal living room and communal open space over 1 level of basement car parking containing 9 parking spaces (including 4 car share and 1 accessible space), 8 motorcycle spaces and 8 bicycle spaces and associated landscaping and stormwater works on the land at 28 Longueville Road, Lane Cove (being Lot 1 DP 1055994).

…………………………

D M Dickson

Commissioner of the Court

Annexure A (414789, pdf)

Decision last updated: 23 July 2021