Kairouz v Campbelltown City Council

[2022] NSWLEC 1593

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kairouz v Campbelltown City Council [2022] NSWLEC 1593

Hearing dates:

Conciliation conference on 20 and 21 October 2022

Date of orders:

27 October 2022

Decision date:

27 October 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

See orders at [33] and [35] below

Catchwords:

APPEAL – development applications – two boarding houses on adjoining lots – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15. 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 3, 49, 55, Sch 1 cl 2A
Environmental Planning and Assessment Regulation 2021 Sch 6 Pt 1 cl 3
Land and Environment Court Act 1979, s 34
Campbelltown Local Environmental Plan 2015 cll 2.3, 4.3, 4.4, 7.1, 7.10
Standard Instrument (Local Environmental Plans) Order 2006, cl 8
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 30, 30AA, 30A
State Environmental Planning Policy (Housing) 2021, Sch 7A cl 2
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Cases Cited:

CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97

Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Category:

Principal judgment

Parties:

Charbel Kairouz (Applicant)
Campbelltown City Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/285331; 2021/285342

Publication restriction:

Nil

Judgment

1. These appeals concern two development applications by Charbel Karouz (Applicant) for the erection of a boarding house on each of two adjoining lots in Donaldson St, Bradbury.

2. Appeal 2021/285331 relates to Development Application No 3569/2020/DA-BH (DA1) which seeks development consent for the demolition of an existing dwelling house and associated structures and the erection of a two-storey boarding house with nine (9) boarding rooms (providing accommodation for a total of sixteen (16) residents including an onsite manager), basement car parking and associated landscaping and site works. The land to which DA1 relates comprises Lot 476 DP 27395 and is known as 6 Donaldson St, Bradbury.

3. Appeal 2021/285342 relates to Development Application No 3566/2020/DA-BH (DA2) which seeks development consent for the demolition of an existing dwelling house and associated structures and the erection of a two-storey boarding house with eleven (11) boarding rooms (providing accommodation for a total of twenty (20) residents including an onsite manager), basement car parking and associated landscaping and site works. The land to which DA2 relates comprises Lot 475 DP 27395 and is known as 4 Donaldson St, Bradbury.

4. DA1 and DA2 (the development applications) were made on 15 October 2020. They were publicly notified between 16 November and 14 December 2020 and the Council received 15 unique submissions and 16 form letters in response. The development applications were refused by the Campbelltown Local Planning Panel on 25 August 2021. The Applicant has appealed from the refusal of the development applications pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeals are appeals in Class 1 of the Court’s jurisdiction. In exercising the functions of the consent authority on the appeals, the Court has the power to determine the development applications pursuant to s 4.16 of the EPA Act.

5. The hearing of the appeals commenced on site on 19 October 2022. Following the adjournment of the hearing, the Court arranged a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

6. 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 each of the proceedings that was acceptable to the parties. The agreements were filed on 20 October 2022 and incorporate amendments to the development applications which were uploaded to the NSW Planning Portal on that day. The amendments were made with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

7. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply, instead of the 2021 Regulation, to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The development applications were made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to them.

8. The parties have informed the Court that all of the contentions raised in the Council’s Amended Statements of Facts and Contentions filed in each appeal on 3 August 2022 have been resolved by the amendments to the development applications and the proposed conditions of consent. 

9. The agreements are each supported by an Agreed Statement – Jurisdictional Prerequisites (Agreed Jurisdictional Statement) provided by the parties on 20 October 2022.

10. The agreements provide for each appeal to be upheld and for development consent to be granted to both development applications subject to conditions. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if it involves the making of a decision that the Court could have made in the proper exercise of its functions.

11. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the reasons that follow.

The statutory conditions on the grant of development consent

The conditions in the EPA Act and Regulation

12. The appeals were brought pursuant to s 8.7, and were made within the time required by s 8.10, of the EPA Act.

13. Section 4.15(1)(d) of the EPA Act requires the consent authority to take into consideration any submissions made in accordance with the Act or the regulations. In addition to the written submissions referred to at paragraph 4 above, oral evidence was given to the Court by two of the submitters on 19 October 2022 and by a further objector by Microsoft Teams on 20 October 2020. The oral evidence raised concerns about loss of privacy, the impacts associated with the excavation of the land, traffic, noise, and other environmental impacts (including impacts on wildlife), accessibility and the impact of the development on local infrastructure. The parties’ agreed position, which I accept, is that these concerns have been addressed through the amended plans and proposed conditions of consent.

14. Clause 49 of the EPA Regulation provides that a development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land. The development applications were made with the consent of the owner of the land.

15. The proposed development is not BASIX affected development as defined in cl 3(1) of the EPA Regulation and is not required by Sch 1 cl 2A of that Regulation to be accompanied by a BASIX certificate.

The conditions in the LEP

Zoning

16. The Land is within Zone R2 – Low Density Residential under the Campbelltown Local Environmental Plan 2015 (LEP). The proposed development was permitted with development consent on land within that zone both at the time the development applications were made and immediately prior to 26 November 2021. On that date amendments made to the LEP by the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument Order) prohibited development for the purposes of a boarding house on land within Zone R2 – Low Density Residential. However, cl 8 of the Standard Instrument Order provides that those amendments do not apply to a development application that was made, but not determined, before the commencement of the amending order. Although the Council had initially contended that the savings provision in cl 8 of the Standard Instrument Order did not apply to the development applications, it ultimately accepted that the development applications should be determined as if the amendments had not been made (CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97). Consequently, the parties’ agreed position, which I accept, is that the proposed development remains permitted with development consent.

Zone objectives

17. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone R2 – Low Density Residential (as they apply to the development applications) are:

•  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 enable development for purposes other than residential only if that development is compatible with the character of the living area and is of a domestic scale.

•  To minimise overshadowing and ensure a desired level of solar access to all properties.

•  To facilitate diverse and sustainable means of access and movement.

18. The parties agree, and I accept, that the development applications are consistent with those objectives.

Building height and floor space ratio

19. The proposed development complies with the applicable development standard in the LEP relating to building height (cl 4.3). The maximum height of the Proposed Development is approximately 7.53 m which is less than the applicable maximum building height of 8.5 m prescribed by cl 4.3 of the LEP.

20. There is no maximum floor space ratio prescribed for the land pursuant to cl 4.4 and the Floor Space Ratio Map of the LEP.

Earthworks

21. Pursuant to cl 7.1 of the LEP, the development applications seek consent for earthworks. The parties agree, and I accept, that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

Essential services

22. Clause 7.10 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the services referred to in that clause that are essential for the development are available or that adequate arrangements have been made to make them available when required.

23. The development applications relate to land that is located in an existing urban area. The parties agree, and I accept, that all of the specified essential services are available.

The conditions in State Environmental Planning Policies

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

24. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7A cl 2 includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development applications.

25. Clause 30 of the SEPP ARH provides that a consent authority must not consent to development to which the clause applies unless it is satisfied of each of the matters set out in that clause. The development applications are each accompanied by an Addendum Statement of Environmental Effects dated October 2022 prepared by GAT & Associates Pty Ltd (Addendum Statement). The Addendum Statements contain a table in Appendix A that assesses each application against the various requirements of cl 30 of the SEPP ARH. Having regard to that table and the Agreed Statement – Jurisdictional Prerequisites provided in each appeal, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH is met by the proposed development.

26. Clause 30AA of the SEPP ARH provides that a consent authority must not grant development consent to a boarding house on land within Zone R2 - Low Density Residential unless it is satisfied that the boarding house has no more than 12 boarding rooms. The proposed development complies with cl 30AA of SEPP ARH as the development proposed by DA1 provides only nine (9) boarding rooms and the development proposed by DA2 provides only eleven (11) boarding rooms.

27. Clause 30A of the SEPP ARH provides that a consent authority must not consent to development to which the clause applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. Each Addendum Statement contains a detailed assessment of the compatibility of the proposed development with the character of the local area and, having regard to that assessment and my own observations of the local area on 19 October 2022, I accept the author’s conclusion that the proposed development is in keeping with and “capable of existing together in harmony” with the existing and likely future development in the local area, that being the commonly accepted test as formulated in Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 at [22]. The existing streetscape in Donaldson St is characterised by low density single dwelling houses. The proposed boarding houses have been designed in a form which the Addendum Statement describes as being representative of a two-storey dwelling “consistent with the density and form of more contemporary dwellings and the desired future character”.

The conditions in State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP)

28. The Hazards SEPP precludes the granting of development consent unless the consent authority has considered whether the site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4).

29. There is an existing dwelling house located on each of the two lots the subject of the development applications and these have been used for residential purposes for many years. The agreed position of the parties, which I accept, is that neither lot is likely to be contaminated and that each lot is suitable for its intended use as a boarding house.

Conclusion

30. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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

The Court’s orders

Proceedings 2021/285331

32. The Court notes that:

1. The Applicant has amended Development Application No. 3569/2020/DA-BH with the agreement of the Respondent, Campbelltown City Council, as the relevant consent authority pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to rely on the following amended plans and documents:

1. Architectural Plans as prepared by Monument Design Partnership.

Sheet Number	Sheet Name	Current Revision	Current Revision Date
DA-00	Cover Sheet	LEC-B	-
DA-01	Survey Plan	LEC-B	27/11/2019
DA-02	Demolition Plan	LEC-B	June 2022
DA-03	Site Plan	LEC-B	June 2022
DA-04	Cut and Fill Plan	LEC-B	June 2022
DA-05	Basement Plan	LEC-B	June 2022
DA-06	Ground Floor Plan	LEC-B	June 2022
DA-07	First Floor	LEC-B	June 2022
DA-08	Roof Plan	LEC-B	June 2022
DA-09	Planning Computations	LEC-B	June 2022
DA-10	Elevations	LEC-B	June 2022
DA-11	Elevations	LEC-B	June 2022
DA-12	Sections 1	LEC-B	June 2022
DA-13	Sections 2	LEC-B	June 2022
DA-14	Driveway profile & Accessible path of travel	LEC-B	June 2022
DA-15	Landscape Plan	LEC-B	June 2022
DA-16	Window / Door Schedule	LEC-B	June 2022
DA-17	Finishes Schedule	LEC-B	June 2022
DA-18	Shadow Plans	LEC-B	June 2022
DA-19	Notification Plan	LEC-B	June 2022

2. Acoustic Report prepared by Acoustic Noise & Vibration Solutions P/L dated 5 October 2022.

3. Addendum Statement of Environmental Effects prepared by GAT & Associates dated October 2022.

4. Addendum Plan of Management prepared by GAT & Associates dated October 2022.

5. Waste Management Plan prepared by Monument Plan dated September 2022.

6. Stormwater Drainage Concept Plans, Drawings D1 to D5, Revision A, prepared by LMW Design Group P/L dated 4 October 2022.

7. Driveway and Carpark Certification (Version 1b) prepared by Motion Traffic Engineers Pty Ltd dated October 2022.

(collectively, the “Amended Development Application”).

2. The Amended Development Application was lodged on the NSW Planning Portal on 20 October 2022.

3. The Applicant has subsequently filed the Amended Development Application with the Court on 20 October 2022.

33. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away, by reason of the amendment of Development Application No. 3569/2020/DA-BH, pursuant to s 8.15(3) of Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. 3569/2020/DA-BH for demolition of an existing dwelling and associated structures and the construction of a two storey boarding house on the land described as Lot 476 DP 27395 known as 6 Donaldson Street, Bradbury, subject to the conditions of consent in Annexure A.

Proceedings 2021/285342

34. The Court notes that:

1. The Applicant has amended Development Application No. 3566/2020/DA-BH with the agreement of the Respondent, Campbelltown City Council as the relevant consent authority pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 to rely on the following amended plans and documents:

1. Architectural Plans as prepared by Monument Design Partnership.

Sheet Number	Sheet Name	Current Revision	Current Revision Date
DA-00	Cover Sheet	LEC-B	-
DA-01	Survey Plan	LEC-B	27/11/2019
DA-02	Demolition Plan	LEC-B	June 2022
DA-03	Site Plan	LEC-B	June 2022
DA-04	Cut and Fill Plan	LEC-B	June 2022
DA-05	Basement Plan	LEC-B	June 2022
DA-06	Ground Floor Plan	LEC-B	June 2022
DA-07	First Floor	LEC-B	June 2022
DA-08	Roof Plan	LEC-B	June 2022
DA-09	Planning Computations	LEC-B	June 2022
DA-10	Elevations	LEC-B	June 2022
DA-11	Elevations	LEC-B	June 2022
DA-12	Sections 1	LEC-B	June 2022
DA-13	Sections 2	LEC-B	June 2022
DA-14	Driveway profile & Accessible path of travel	LEC-B	June 2022
DA-15	Landscape Plan	LEC-B	June 2022
DA-16	Window / Door Schedule	LEC-B	June 2022
DA-17	Finishes Schedule	LEC-B	June 2022
DA-18	Shadow Plans	LEC-B	June 2022
DA-19	Notification Plan	LEC-B	June 2022

2. Acoustic Report prepared by Acoustic Noise & Vibration Solutions P/L dated 5 October 2022.

3. Addendum Statement of Environmental Effects prepared by GAT & Associates dated October 2022.

4. Addendum Plan of Management prepared by GAT & Associates dated October 2022.

5. Waste Management Plan prepared by Monument Plan PLC dated September 2022.

6. Stormwater Drainage Concept Plans, Drawings D1 to D5, Revision A, prepared by LMW Design Group P/L dated 4 October 2022.

2. Driveway and Carpark Certification (Version 1b) prepared by Motion Traffic Engineers Pty Ltd dated October 2022.

(collectively, the “Amended Development Application”).

2. The Amended Development Application was lodged on the NSW Planning Portal on 20 October 2022.

3. The Applicant has subsequently filed the Amended Development Application with the Court on 20 October 2022.

35. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away, by reason of the amendment of Development Application No. 3566/2020/DA-BH, pursuant to s 8.15(3) of Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The Appeal is upheld.

3. Development consent is granted to Development Application No. 3566/2020/DA-BH for demolition of an existing dwelling and associated structures and the construction of a two storey boarding house on the land described as Lot 475 DP 27395 known as 4 Donaldson Street, Bradbury, subject to the conditions of consent in Annexure B.

.………………………

A Bradbury

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 27 October 2022