James v Strathfield Council

[2019] NSWLEC 1319

Land and Environment Court

New South Wales

Medium Neutral Citation:	James v Strathfield Council [2019] NSWLEC 1319
Hearing dates:	Conciliation conference on 4 July 2019
Date of orders:	09 July 2019
Decision date:	09 July 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [15] below
Catchwords:	DEVELOPMENT APPEAL – appeal against refusal – conciliation conference – boarding house development – agreement between the parties – orders
Legislation Cited:	Environmental Planning and assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Strathfield Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Anthony James (Applicant) Strathfield Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant)   Solicitors: G&B Lawyers (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/158439
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Strathfield Council (the Respondent) of Development Application No. 2017/070/01 (the DA) for the demolition of existing structures and construction of a two (2) storey boarding house containing ten (10) boarding rooms and one (1) caretaker’s unit, over basement car parking containing four (4) car parking spaces, three (3) motorcycle spaces and a bicycle storage room, with communal living room, deck and barbeque facilities.

2. Prior to the proceedings, the Applicant sought leave to rely on amended plans that the parties agree resolved a number of the contentions, including the deletion of basement car parking which had the effect of reducing the bulk and scale of the development, and amended the number of boarding rooms to eight (8), and relocating the Manager’s room and private open space.

3. The matter was initially listed before me for hearing on 4-5 July 2019. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 4 July 2019. I presided over the conciliation conference.

4. At the commencement of the conciliation conference, the Respondent arranged for two objectors to provide submissions by telephone in support of written submissions received prior. In broad terms, the submissions expressed concern at the increased occupancy proposed for the site, and the associated noise, waste and traffic that may result.

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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 July 2019.

6. The parties ask me to approve their decision as set out in the s 34 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 s 34 agreement.

7. 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. There are jurisdictional prerequisites contained in the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) applicable at the time and the Strathfield Local Environmental Plan 2012 (SLEP).

8. 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 [15]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the SLEP, which permits development for the purpose of a ‘Boarding house’ with consent.

2. The provisions of the R2 zone permit residential accommodation development that is consistent with the objectives of the zone, which are as follows:

• To provide for the housing needs of the community within a low 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 development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

9. Clause 29 of the Affordable Housing SEPP, applicable at the time the DA was lodged, contains standards that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards, other than in relation to the size of room U-3 which is less than the area found in subcl 29(2)(f)(i) by a factor of 6%. I accept that this is due, in part, to the size and layout of the accessible bathroom servicing room U-3, and is not a reason to refuse consent.

10. 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.

11. Furthermore, I am satisfied that the amended plans result in a proposed development that will not have an adverse effect on the heritage significance of the items adjacent to the site pursuant to cl 5.10(4) of the SLEP.

12. As the jurisdictional prerequisites to the grant of consent have been addressed I am 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.

13. 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.

14. 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.

15. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

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

DRAWING NO.	TITLE / DESCRIPTION		PREPARED BY		ISSUE / REVISION		DATED
BU128-17 Drg No 1	Site Plan		Sabton & Son		Issue G		April 2019
BU128-17 Drg No 2	Ground Floor Plan		Sabton & Son		Issue G		April 2019
BU128-17 Drg No 3	First Floor Plan		Sabton & Son		Issue G		April 2019
BU128-17 Drg No 4	Front-Western Elevation and (L.H.Side) Northern Elevation		Sabton & Son		Issue G		April 2019
BU128-17 Drg No 5	Rear Eastern Elevation and (R.H.Side) Southern Elevation		Sabton & Son		Issue G		April 2019
BU128-17 Drg No 6	Section A-A		Sabton & Son		Issue G		April 2019
SW02	Stormwater Drainage Concept Plan		Australiawide Consulting Services Pty Ltd		21 May 2019
L/D2017-53, Sheet 1	Landscape Plan		Dayspring Landscaping		Issue 4		8 April 2019
TITLE / DESCRIPTION		PREPARED BY		ISSUE/ REVISION		DATED
Operational Plan of Management		MB Town Planning		Issue A – J17154		24 January 2019

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development Application No. 2017/070/01 for the demolition of existing structures and construction of a 2 storey boarding house containing 8 rooms and 1 caretaker’s room with covered at-grade car parking containing 5 car spaces and 3 motorcycle spaces and a communal kitchen, living and dining room on the land at 88 Homebush Road, Strathfield is approved subject to the conditions of consent annexed hereto and marked “A”.

…………………………..

T Horton

Commissioner of the Court

Annexure A (251 KB, pdf)

Amended Plans (2.54 MB, pdf)

Operational Plan of Management(681 KB, pdf)

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Decision last updated: 09 July 2019