Lin v Georges River Council

[2023] NSWLEC 1070

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lin v Georges River Council [2023] NSWLEC 1070

Hearing dates:

Conciliation conference 13 February 2023

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No DA2021/0621 for demolition of existing structures and construction of a 13 room boarding house (one being a caretakers room). Landscaping and site works at 15 Dalcassia Street, Hurstville being Lot 56 in DP 6510 is determined by the grant of consent subject to the conditions in Annexure A.

(3) The Applicant is to pay Council’s costs thrown away, as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979.

Catchwords:

DEVELOPMENT APPEAL – Boarding house –character – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Georges River Local Environmental Plan 2021, cl 1.8A

Hurstville Local Environmental Plan 2012, cl 2.3

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

State Environmental Planning Policy (Housing) 2021 Sch 7A, s 2

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Environmental Planning and Assessment Regulation 2000, cl 55

Texts Cited:

Hurstville Development Control Plan No 1

Category:

Principal judgment

Parties:

Wang Zhang Lin (First Applicant)
Bao Zhen Qiu (Second Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
R McCulloch (Solicitor)(Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s):

22/189574

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2020/0261 for the demolition of an existing dwelling and the construction of a new four storey boarding house comprising 15 rooms (the Proposed Development) at 15 Dalcassia Street, Hurstville legally described as Lot 56 in DP6510 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 February 2023. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the local environmental plans.

7. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note.

8. Development application DA/2021/0261 (the DA) was made with the consent in writing of Wang Zhang Lin and Bao Zhen Qiu who are the owners of the Site in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

9. The Georges River Local Environmental Plan 2021 (GRLEP 2021) commenced on 8 October 2021 and repealed the Hurstville Local Environmental Plan 2012 (HLEP 2012). The DA was lodged prior to commencement of the GRLEP 2021 and is subject to the provisions of the HLEP 2012 as a result of the savings provisions in cl 1.8A of GRLEP 2021.

10. The proposed development is for a boarding house as defined in the Dictionary to HLEP 2012.

11. The land to which the development application relates is situated within Zone R3 Medium Density Residential (R3 Zone) pursuant to the provisions of HLEP 2012. Development for the purposes of a boarding house is permissible with consent in accordance with the Land Use Table relating to R3 Zone in the HELP 2012.

12. The parties have considered the objectives of the R3 Zone when reaching their agreement and those R3 Zone objectives are as follows:

▪ 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 ensure that a high level of residential amenity is achieved and maintained.

▪ To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

13. As required by cl 2.3(2) of the HLEP 2012, the Court, as consent authority, has had regard to the objectives for development in the R3 Zone. The objectives of the zone are addressed at page 24 of the Statement of Environmental Effects (SEE) prepared by Cracknell & Lonergan Architects, Tab 6 to the Class 1 Application filed 29 June 2022.

14. The DA was lodged on 29 June 2020, being a date prior to the commencement of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) of 26 November 2021. Pursuant to the savings provision in s 2, sch 7A of SEPP Housing, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) continue to apply to the DA and the provisions of SEPP Housing do not.

15. The parties are of the view, and the Court is satisfied, that the Proposed Development in its amended form is compatible with the character of the local area in accordance with cl 30A of SEPP ARH.

16. In relation to character, the Site is R3 Zone and the surrounding land was also previously R3 Zone however, the surrounding land is now zoned R4 – High Density Residential following the commencement of the GRLEP on 8 October 2021.

17. The immediate locality in Dalcassia Street contains a variety of residential flat buildings and dwelling houses. The dwelling houses are of older construction, with modest size and single storey. Residential flat buildings are three storey 1970s to 1980s walk up style buildings.

18. I have considered the particulars of the contention raised by the Respondent in the Statement of Facts and Contentions filed 15 August 2022 and formed my opinion as to compatibility with the character because of the following amendments to the Proposed Development:

1. Increased landscaping at the front setback as depicted in drawing DA102 Rev G resulting in increased deep soil allowing for the planting of two trees and additional landscaping at the rear and side boundaries;

2. Deferred commencement conditions Part A condition 1(c), (d) and (e) relating to further landscaping amendments;

3. Architectural changes to the presentation of the building to the street consisting of thinner and longer horizontal architectural elements on the front façade of the building; and

4. Architectural changes to the size and location of the basement resulting in the protection of neighbouring trees.

19. The Proposed Development is otherwise compliant with the applicable development standards pursuant to the HLEP 2012 and cll 29 and 30 of SEPP ARH. I have referred to the SEE filed with the Class 1 Application and note the compliance table on page 18 in relation to these development standards.

20. A BASIX Certificate dated 8 February 2023 has been provided in accordance with Schedule 1 of the EPA Regulation.

21. I have considered whether the Site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards). Given the historical use of the site for residential purposes, the parties are of the view that any contamination is unlikely. The SEE contains an aerial image of the site from 1943 obtained via the NSW Six Maps Database and a Hurstville Parish Map from 1888 from the NSW Land Registry Service. Both images show that the site has been used for residential purposes for over 100 years and indicate that there is very little to no likelihood of land contamination. Conditions 49 and 58 have been agreed in the Annexure A conditions of consent to address any unexpected contamination discoveries.

22. The parties have taken into consideration the relevant provisions of Hurstville Development Control Plan No 1 as required by s 4.15(1)(a)(iii) of the EPA Act.

23. The development application was notified for 14 days from 13 July 2020 and 7 submissions were received. The parties are satisfied that the amended plans and agreed conditions of consent are responsive to the concerns raised in those submissions.

24. 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. I adopt the reasons given by the parties as set out above.

25. 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.

Notations:

26. The Court notes that:

1. Georges River Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicants amending Development Application DA2022/0116 to rely upon the following plans and documents:

Plan/Document Description	Prepared by	Date
DA004 Issue G – Site Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA101 Issue G – Basement Floor Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA102 Issue G – Ground Floor Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA103 Issue G – First Floor Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA104 Issue G – Second Floor Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA105 Issue G – Third Floor Plan	Cracknell & Lonergan Architects P/L	7.02.23
DA201 Issue G – Southern Elevation	Cracknell & Lonergan Architects P/L	7.02.23
DA202 Issue G – Northern Elevation	Cracknell & Lonergan Architects P/L	7.02.23
DA301 Issue G – Cross Section	Cracknell & Lonergan Architects P/L	7.02.23
DA302 Issue G – Driveway Cross Section	Cracknell & Lonergan Architects P/L	7.02.23
DA401 Issue G – Areas Schedule	Cracknell & Lonergan Architects P/L	7.02.23
DA402 Issue G – Room Layout	Cracknell & Lonergan Architects P/L	7.02.23
DA403 Issue G – Typical Bathroom Configuration	Cracknell & Lonergan Architects P/L	7.02.23
DA501 Issue G – Materials & Finishes	Cracknell & Lonergan Architects P/L	7.02.23
DA701 Issue G – Streetscape Photomontage 01	Cracknell & Lonergan Architects P/L	7.02.23
DA702 Issue G – Streetscape Perspective	Cracknell & Lonergan Architects P/L	7.02.23
DA804 Issue G – Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA805 Issue G – Solar Diagrams – Mid Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA806 Issue G – Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA807 Issue G - Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA808 Issue G - Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA809 Issue G - Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA810 Issue G - Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA811 Issue G - Solar Diagrams – Mid-Winter View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA904 Issue G - Solar Diagrams – Equinox View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA905 Issue G - Solar Diagrams – Equinox View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA906 Issue G - Solar Diagrams – Equinox View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
DA907 Issue G - Solar Diagrams – Equinox View from the Sun	Cracknell & Lonergan Architects P/L	7.02.23
LPS34 21 - 189 / 1 Issue F – Hardscape Plan	Conzept Landscape Architects	8.02.23
LPS34 21 - 189 / 2 Issue F – Landscape Plan	Conzept Landscape Architects	8.02.23
LPS34 21 - 189 / 3 Issue E – Planting Palettes	Conzept Landscape Architects	19.01.23
LPS34 21 - 189 / 4 Issue E – Details	Conzept Landscape Architects	19.01.23
LPS34 21 - 189 / 5 Issue E – Details	Conzept Landscape Architects	19.01.23
LPS34 21 - 189 / 6 Issue E – Specifications	Conzept Landscape Architects	19.01.23
SMP-04 Rev E – Basement Plan & Pump-Up System	MCA Consulting Engineers	Feb 2023
SMP-05 Rev E – GF Plan & Site Plan	MCA Consulting Engineers	Feb 2023
SMP-11 Rev E – Erosion & Sediment Control Plan	MCA Consulting Engineers	Feb 2023
Arboricultural Impact Assessment	Dr. Treegood	Dec 2022
BASIX Certificate No. 1090839M_05	LC Consulting Engineers	8.02.23
Traffic Turning Circle Statement	PDC Consultants	18.01.23

1. The plans and documents, comprising the amended DA, were filed with the Court on 13 February 2023.

Orders:

27. The Court orders:

1. The appeal is upheld.

2. Development Application No DA2021/0621 for demolition of existing structures and construction of a 13 room boarding house (one being a caretakers room). Landscaping and site works at 15 Dalcassia Street, Hurstville being Lot 56 in DP 6510 is determined by the grant of consent subject to the conditions in Annexure A.

3. The Applicant is to pay Council’s costs thrown away, as agreed or assessed pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979.

E Espinosa

Commissioner of the Court

Annexure A 

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Decision last updated: 21 February 2023