Liquid Gold 888 Pty Ltd v Penrith City Council

[2021] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liquid Gold 888 Pty Ltd v Penrith City Council [2021] NSWLEC 1497

Hearing dates:

Conciliation conference on 25 August 2021

Date of orders:

03 September 2021

Decision date:

03 September 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of Development Application No. 20/0717 in relation to items 1, 10 and 16 of Annexure A, agreed in the amount of $4,100 (inc GST) within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application No. 20/0717 for the demolition of existing structures and construction of a two-storey boarding house over basement parking with 11 boarding rooms, at 6 Edna Street, Kingswood, is approved, subject to the conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

Penrith Local Environmental Plan 2010 cll 4.3, 4.4, 7.1, 7.4, 7.6, 7.7

State Environmental Planning Policy (Affordable Rental Housing) 2009 Div 3

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

State Environmental Planning Policy (Western Sydney Aerotropolis) 2000 cll 21, 24

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

State Environmental Planning Policy No 55—Remediation of Land cl 7

Category:

Principal judgment

Parties:

Liquid Gold 888 Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R White (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Dentons Australia (Respondent)

File Number(s):

2020/353820

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 20/0717 for a two-storey boarding house over basement parking with 11 boarding rooms (the proposal) at 6 Edna Street, Kingswood (the site) by Penrith City Council (the Council).

2. The application was amended pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 with the consent of the Council and the amendment was lodged on the NSW planning portal on 24 August 2021 and filed with the Court. The amended plans and documents are listed at Annexure A.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act1979 (LEC Act) between the parties, which was held on 25 August 2021. I presided over the conciliation conference. 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.

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

5. There are jurisdictional pre-conditions to the exercise of power to grant development consent.

Jurisdictional pre-conditions to the grant of development consent

6. The application is made pursuant to cl 28 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Division 3 applies to the site at cl 26 of SEPP ARH, because the site is zoned R3 Medium Density Residential by the Penrith Local Environmental Plan 2010 (LEP 2010). Clause 27 applies to the proposal because the proposal is for the purpose of boarding house. Development to which Div 3 applies may be carried out with development consent pursuant to cl 28 of SEPP ARH.

7. A consent authority, or the Court exercising the functions of the consent authority, must not consent to development to which Div 3 applies, unless satisfied of each of the following relevant standards, at cl 30(1) of SEPP ARH:

(a) if a boarding house has 5 or more boarding rooms, at least one communal living room will be provided,

(b) no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres,

(c) no boarding room will be occupied by more than 2 adult lodgers,

(d) adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger,

(e) if the boarding house has capacity to accommodate 20 or more lodgers, a boarding room or on site dwelling will be provided for a boarding house manager,

(h) at least one parking space will be provided for a bicycle, and one will be provided for a motorcycle, for every 5 boarding rooms.

8. I am satisfied that the relevant standards under cl 30(1) of SEPP ARH are satisfied, because the proposal has a north-facing communal living room on the ground floor opening onto a communal open space; no boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25m²; no boarding room will be occupied by more than 2 adult lodgers by operation of the Plan of Management; each boarding room includes a bathroom and a kitchenette; the boarding house has a maximum capacity of 17 lodgers and accommodation for an onsite manager; and the proposal includes parking for 2 motorcycles, 2 bicycles and 6 cars in the basement.

9. A consent authority must not consent to development to which Div 3 applies unless it has taken into consideration whether the development is compatible with the character of the local area, at cl 30A of SEPP ARH. I accept the agreement of the planning experts that the proposal is compatible with the character of the medium density residential the character of the local area and on the basis of their evidence, I am satisfied that the proposal is consistent with the objectives of the R3 zone.

10. The objectives of the R3 zone, to which regard must be had, are:

• 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 concentration of housing with access to services and facilities.

• To enhance the essential character and identity of established residential areas.

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

• To ensure that development reflects the desired future character and dwelling densities of the area.

11. The height of buildings development standard for the site is 8.5m (cl 4.3 and Height of Buildings Map HOB_013 of LEP 2010) and there is no floor space ratio (FSR) development standard for the site (cl 4.4 and Floor Space Ratio Map FSR_013 of LEP 2010). The proposal complies with the height of buildings development standard.

12. I am satisfied that the Geotechnical Investigation Report prepared by Geotechnical Consulting Australia dated 11 May 2021 and the Preliminary Structural Feasibility Report prepared by Acroyali Engineering dated 30 April 2021, submitted with the proposal, adequately address the matters required to be considered for earthworks pursuant to cll 7.1(3) and 7.6(2) of LEP 2010.

13. The proposal is accompanied by an updated BASIX Certificate and Section J Report prepared by Outsource Ideas Pty Ltd dated 1 June 2021 which adequately address the principles for sustainable development and have considered the matters under cl 7.4 of LEP 2010 and the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

14. I am satisfied by the evidence before me that the site has access to services pursuant to cl 7.7(2) of LEP 2010.

15. The Council has considered whether the land is contaminated pursuant to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, having had regard to the Site Investigation Report prepared by Geotechnical Consultants Australia dated 6 April 2021, the Detailed SITE Investigation Report prepared by Geotechnical Consultants Australia dated 28 May 2021 and the CENVP Review of Detailed Site Investigation Report prepared by Harwood Environmental Consultants dated 1 June 2021. The Council is satisfied, on the basis of conditions 45-47 and 51 of the conditions of consent at Annexure A in relation to the demolition of existing structures and disposal of contaminants, that the land will be remediated to be made suitable for the residential purpose for which development is proposed to be carried out.

16. I am satisfied that adequate consideration has been given to the general planning considerations at cl 5 and the specific planning policies and recommended strategies at cl 6 of the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997), pursuant to cl 4(1). The only likely relevant impacts of the proposal relate to stormwater discharge and I am satisfied that the stormwater proposal, together with conditions of consent, will protect the waters of the Hawksbury-Nepean River in terms of stormwater quantity and quality.

17. The site is within the 13km wildlife buffer zone of the Western Sydney (Nancy Bird Walton) Airport and cl 21(2) of the State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 requires the consent authority to consult the relevant Commonwealth body and consider the matters listed under cl 21(2). Clause 24 applies to development on land shown on the Obstacle Limitation Surface map, which includes the site, and cl 24(3) requires the consent authority to consult with the relevant Commonwealth body. I am satisfied that the Council has considered the matters pursuant to cll 21(2) and 24(3) in the Council’s Major Assessment Report dated 30 October 2020 and I accept the Council’s decision that the proposal does not require additional consideration under State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 regarding wildlife and the operation of the airport because the requirements of the relevant clauses are not triggered by the proposal.

Orders

18. The orders of the Court are:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of Development Application No. 20/0717 in relation to items 1, 10 and 16 of Annexure A, agreed in the amount of $4,100 (inc GST) within 28 days of these orders.

2. The appeal is upheld.

3. Development Application No. 20/0717 for the demolition of existing structures and construction of a two-storey boarding house over basement parking with 11 boarding rooms, at 6 Edna Street, Kingswood, is approved, subject to the conditions of consent at Annexure B.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (99634, pdf)

Annexure B (322683, pdf)

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Decision last updated: 03 September 2021