Khan v Campbelltown City Council

[2024] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khan v Campbelltown City Council [2024] NSWLEC 1508

Hearing dates:

Conciliation Conference on 7 June 2024

Date of orders:

22 August 2024

Decision date:

22 August 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000 within 21 days of the date of these orders.

(3) Development Application No. DA-4272/2023/DA-BH, as amended, for demolition of existing structures, tree removal and construction of a 3 storey co-living housing development containing 24 rooms with at-grade parking and landscaping at 58 Moore Street, Campbelltown, is determined by the grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – Development application – co-living housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Roads Act 1993, s 138

Campbelltown Local Environmental Plan 2015, cll 4.3, 4.4, 7.1, 7.4, 7.10, 7.13

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Housing) 2021, Ch 5, ss 67, 68, 69

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Texts Cited:

Campbelltown (Sustainable City) Development Control Plan 2015

Category:

Principal judgment

Parties:

Rakhshan Khan (Applicant)
Campbelltown City Council (Respondent)

Representation:

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

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

File Number(s):

2024/80172

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (No 4272/2023/DA-BH) (Development Application) seeking consent for the demolition of existing structures, tree removal and construction of a co-living housing development containing 34 private rooms accommodating a total of 68 residents, with associated landscaping and basement parking for 7 cars, 7 motorcycles and 7 bicycles, on land identified as Lot 3 in Deposited Plan 128118 known as 58 Moore Street, Campbelltown (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 26 November 2023.

4. On 18 December 2023, the Development Application was referred to Transport for NSW (TfNSW) for concurrence in accordance with s 138 of the Roads Act 1993.

5. On 17 January 2024, TfNSW provided its concurrence subject to certain requirements being included as conditions of consent. These requirements are included in condition 22 of the Agreed Conditions.

6. On 22 February 2024, the Development Application was considered by the respondent’s Design Excellence Panel.

7. On 1 March 2024, the proceedings were commenced against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

8. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 7 June 2024 and adjourned a number of times.

9. During the conciliation process, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement was provided to the Court on 8 August 2024 following the applicant amending the Development Application with the respondent’s agreement. The agreed amendments to the Development Application as lodged relevantly include:

1. reducing the number of private rooms;

2. updating the landscape design and increasing deep soil;

3. amending the parking layout to delete basement parking; and

4. amending the waste/bin room dimensions and layout,

5. (Amended Development Application).

10. The decision agreed upon is the grant of consent to the Amended Development Application, subject to conditions of consent.

11. 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.

Submissions and notification

12. The Development Application was notified between 14 December 2023 and 5 February 2024. A petition against the proposed development signed by numerous surrounding residents was received in response to the public exhibition and notification of the Development Application.

13. One objector addressed the Court at the on-site view associated with the conciliation conference on 7 June 2024.

14. The Amended Development Application was re-notified from 20 June to 4 July 2024. No submissions were received in response to this notification.

Jurisdictional considerations

15. As the presiding Commissioner, I am satisfied that the decision is one 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 form this state of satisfaction for the reasons that follow.

Owner’s consent

16. The Development Application was lodged by the applicant, being the owner of the Subject Land (see Class 1 Application, tab 1) and owner’s consent was provided to the Development Application on 12 November 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. I accept the parties’ submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events (as per the Statement of Environmental Effects prepared by Andrew Robinson Planning Services Pty Ltd, dated November 2023 (SEE)).

State Environmental Planning Policy (Transport and Infrastructure) 2021

18. As set out above, the proposed development has frontage to, and proposed vehicular access from, a classified road. For the purposes of s 2.119(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP), the parties submit and I accept that:

1. it is not practicable to obtain vehicular access to the land other than via the classified road;

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development based on the contents of the Traffic and Parking Assessment prepared by Transport and Traffic Planning Associates dated June 2024; and

3. potential traffic noise or vehicle emissions within the site of the development arising from the classified road can be appropriately ameliorated in accordance with the recommendations of the Acoustical Statement prepared by Koikas Acoustics dated 7 August 2024 (Acoustic Report).

19. For the purposes of s 2.120(3) of the TISEPP, the parties submit and I accept, that appropriate measures will be taken to ensure that relevant LAeq levels are not exceeded having regard to the conclusions of the Acoustic Report and the Agreed Conditions which require the implementation of the recommendations in the Acoustic Report.

State Environmental Planning Policy (Housing) 2021

20. The Subject Land is zoned R3 Medium Density Residential under the Campbelltown Local Environmental Plan 2015 (CLEP). The Amended Development Application, being a co-living housing proposal, is prohibited in the R3 zone under the CLEP. The Amended Development Application therefore relies on the provisions of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) (specifically s 67) such that co-living housing development is permissible with consent in a R3 Medium Density Residential zone. To the extent of any inconsistency between the Housing SEPP and another environmental planning instrument (for example, the CLEP), the Housing SEPP prevails to the extent of the inconsistency.

21. Section 67 of the Housing SEPP relevantly provides that development for the purposes of co-living housing may be carried out with consent on land in a zone in which development for the purposes of residential flat buildings or shop top housing is permitted under Ch 5 or another environmental planning instrument. As development for the purposes of shop top housing is permissible with consent in the R3 Medium Density Residential zone under the CLEP, co-living housing is permissible in that zone under s 67 of the Housing SEPP.

22. Section 68 of the Housing SEPP sets out non-discretionary standards, that if complied with, prevent the consent authority from requiring more onerous standards for these matters. The parties submit, and I accept, that the Amended Development Application complies with all applicable non-discretionary development standards set out in s 68 of the Housing SEPP.

23. Section 69(1) of the Housing SEPP sets out development standards for co-living housing as follows:

(1)  Development consent must not be granted for development for the purposes of co-living housing unless the consent authority is satisfied that—

(a)  each private room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, that is not more than 25m² and not less than—

(i)  for a private room intended to be used by a single occupant—12m², or

(ii)  otherwise—16m², and

(b)  the minimum lot size for the co-living housing is not less than—

(i)  for development on land in Zone R2 Low Density Residential—600m², or

(ii)  for development on other land—800m², and

(iii)   (Repealed)

(c)  for development on land in Zone R2 Low Density Residential or an equivalent land use zone, the co-living housing—

(i)  will not contain more than 12 private rooms, and

(ii)  will be in an accessible area, and

(d)  the co-living housing will contain an appropriate workspace for the manager, either within the communal living area or in a separate space, and

(e)  for co-living housing on land in a business zone—no part of the ground floor of the co-living housing that fronts a street will be used for residential purposes unless another environmental planning instrument permits the use, and

(f)  adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant, and

(g)  each private room will be used by no more than 2 occupants, and

(h)  the co-living housing will include adequate bicycle and motorcycle parking spaces.

24. The parties agree that the Amended Development Application complies with all of the applicable standards listed in s 69(1). In determining the Amended Development Application, I confirm that I am satisfied of the matters listed in s 69(1) of the Housing SEPP.

25. Further, s 69(2) of the Housing SEPP provides that development consent must not be granted for development for the purposes of co-living housing unless the consent authority considers specified matters. The parties submit, and I accept, that the matters listed for consideration in s 69(2) of the Housing SEPP have been considered.

Campbelltown Local Environmental Plan 2015

26. As set out at [20], the Subject Land is zoned R3 Medium Density Residential under the CLEP. Development for the purposes of co-living housing is prohibited within the R3 zone, however, the use is made permissible due to the operation of the Housing SEPP.

27. I have had regard to the R3 zone objectives which are extracted below:

• To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a wide range of housing choices in close proximity to commercial centres, transport hubs and routes.

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

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

28. Pursuant to cl 4.3 of the CLEP, the maximum height of buildings on the Subject Land is limited to 9m. The parties agree that the Amended Development Application complies with this development standard.

29. Pursuant to cl 4.4 of the CLEP, the Subject Land is not mapped as having a maximum FSR under the CLEP.

30. Pursuant to cl 7.1 of the CLEP, the Amended Development Application seeks consent for earthworks. Clause 7.1(3) of the CLEP prescribes a number of mandatory matters that must be considered prior to the granting of development consent. In determining the Amended Development Application, I have considered the matters set out in cl 7.1(3) of the CLEP, including the assessment set out at p 17 of the SEE (noting that the scope of earthworks proposed in the SEE has subsequently been reduced in the Amended Development Application) and the agreed conditions of consent.

31. Pursuant to cl 7.4 of the CLEP relating to salinity, the consent authority must consider the matters listed in cl 7.4(3) and be satisfied of the matters listed in cl 7.4(4) of the CLEP before granting development consent. The parties submit, and I accept, that condition 29 of the Agreed Conditions addresses the potential salinity issues that may arise as a result of the Amended Development Application and satisfies the considerations listed in cl 7.4(4) of the CLEP.

32. Pursuant to cl 7.10 of the CLEP, development consent must not be granted to development unless the consent authority is satisfied that the services that are essential for the development are available or adequate arrangements have been made to make them available when required. The parties submit, and I accept, that the development has or will have access to all of the essential services where relevant at the time required.

33. Pursuant to cl 7.13 of the CLEP, development consent must not be granted to development unless the consent authority considers that the development exhibits design excellence. As the Amended Development Application proposes the erection of a new building in the R3 Medium Density Residential zone, this provision applies. The Amended Development Application is accompanied by a Design Excellence Statement prepared by JSA Studios dated 2 August 2024 which identifies how the amended plans achieve design excellence having regard to the matters listed in cl 7.13(4) of the CLEP.

Campbelltown (Sustainable City) Development Control Plan 2015

34. The parties submit, and I accept that, the relevant provisions of the Campbelltown (Sustainable City) Development Control Plan 2015 have been taken into consideration in the assessment and determination of the Amended Development Application.

Remaining matters under s 4.15(1) of the EPA Act

35. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15 of the EPA Act.

36. Matters relevant to s 4.15(1)(a) have been generally considered above and in the SEE.

37. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment (see pp 28-32 of the SEE).

38. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see pp 32-33 of the SEE).

39. In relation to s 4.15(1)(d), as noted at [12] there was significant community opposition to the Development Application as lodged. The parties agree that the Amended Development Application addresses the resident objections and concerns. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

40. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see p 33 of the SEE).

41. In determining the Amended Development Application, I have taken into consideration such of the matters that are of relevance to the proposal listed in s 4.15(1) of the EPA Act.

Conclusion

42. 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.

43. 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.

44. The Court notes that the respondent, as the relevant consent authority has, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, consented to the applicant amending Development Application No. DA-4272/2023/DA-BH, in accordance with the following documents:

1. Covering Letter, prepared by David Rippingill (Design Collaborative Pty Ltd), dated 26 July 2024;

2. Architectural drawings prepared by JSA Studio Architects, dated 26 July 2024;

3. Landscape drawings prepared by Zenith Landscaping, dated 25 July 2024 being revision B;

4. Stormwater drawings prepared by Engineering Studio, dated 25 July 2024 being revision D;

5. Ongoing Waste Management Plan prepared by Design Collaborative, dated 26 July 2024;

6. Co-Living Plan of Management prepared by Design Collaborative, dated August 2024;

7. Design Excellence Statement prepared by JSA Studio Architects dated 2 August 2024;

8. Traffic and Parking Assessment prepared by Transport and Traffic Planning Associates dated June 2024;

9. Waste Service Contractor confirmation of serviceability from Moustafa Elba at Waste Clear, dated 11 July 2024;

10. Waste Service Contractor confirmation of serviceability from Nicholas Kleiner at Sydney Waster Services, dated 25 July 2024;

11. Swept path analysis; and

12. Acoustical Statement prepared by Koikas Acoustics Pty Ltd, dated 7 August 2024.

45. The documents listed above were filed with the Court on 9 August 2024.

Orders

46. The Court orders that:

1. The appeal is upheld.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000 within 21 days of the date of these orders.

3. Development Application No. DA-4272/2023/DA-BH, as amended, for demolition of existing structures, tree removal and construction of a 3 storey co-living housing development containing 24 rooms with at-grade parking and landscaping at 58 Moore Street, Campbelltown, is determined by the grant of consent, subject to the conditions set out in Annexure A.

N Targett

Commissioner of the Court

80172.24 Annexure A

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Decision last updated: 22 August 2024