Liquid Gold 888 Pty Ltd v Penrith City Council

[2020] NSWLEC 1509

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liquid Gold 888 Pty Ltd v Penrith City Council [2020] NSWLEC 1509

Hearing dates:

Conciliation Conference on 15 October 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA19/0705 for the demolition of existing structures, land remediation works, and construction of a two-storey boarding house containing 11 boarding rooms, a manager’s room and basement car parking and associated site works at 6 Edith Street Kingswood NSW 2747 is approved subject to the conditions at Annexure “A”. The approved plans are at Annexure “B”.

Catchwords:

DEVELOPMENT APPEAL – boarding house – conciliation conference – agreement between the parties – submissions from residents – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Penrith Local Environmental Plan 2010

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy 55— Remediation of Land

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

Texts Cited:

Penrith Development Control Plan 2014

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Farrell (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Penrith City Council (Respondent)

File Number(s):

2019/400470

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) against the refusal by the Penrith Local Planning Panel of a development application DA19/0705 seeking consent for the demolition of existing structures, land remediation works, and the construction of a two-storey boarding house containing 11 rooms, a manager’s room and basement car parking and associated site works (the Proposed Development) at 6 Edith Street, Kingswood NSW 2747, legally described as Lot 55 in DP 241989 (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 was held on 15 October 2020. I presided over the conciliation conference.

3. The hearing of the matter had commenced the previous day, 14 October 2020 following a site inspection and hearing evidence from the resident objectors.

4. The Proposed Development was amended by the Applicant following the grant of leave to rely on amended architectural and stormwater plans and an updated BASIX Certificate on 14 October 2020. The Joint Reports of the expert witnesses, filed by the parties, conclude that all planning and contamination matters have been resolved and otherwise dealt with in the filed agreed draft conditions of consent. The Respondent did not press any further contention and the hearing was adjourned and then vacated following the conclusion of the conciliation conference.

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 upholding the appeal and granting development consent to the development application subject to conditions.

6. 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.

7. 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, and explained how the jurisdictional prerequisites have been satisfied in an agreed written statement as follows:

1. Penrith Local Environmental Plan 2010 (Penrith LEP):

“(a) The Site is zoned R3 medium density residential under the Penrith LEP and development for the purposes of boarding houses is permissible in the Zone.

(b) The Court, having regard to the objectives of the zone may approve the Amended Development Application pursuant to clause 2.3(2) of the Penrith LEP.

(c) In relation to cl 7.1 of the Penrith LEP, ‘Earthworks’, the parties agree that the Court can be satisfied that those matters arising in clause 7.1(3) have been considered as part of the assessment of the Amended Development Application.

(d) In relation to cl 7.4 of the Penrith LEP, ‘Sustainable development’ the parties agree that the Court can be satisfied that those matters arising in clause 7.4 that those matters arising in matters (a) – (j) have been considered as part of the assessment of the Amended Development Application including updated BASIX certificate.”

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55):

“(a) In relation to clause 7(1) of SEPP55, the Court can be satisfied that consent can be granted because it:

(i) has considered that the land is contaminated, and

(ii) is satisfied that the land will be suitable, after remediation, for the purpose for which the development is proposed to be carried out, and

(iii) on the basis of conditions of consent, is satisfied that the land will be remediated before the land is used for that purpose.

(b) In particular:

(i) additional information was provided by the Applicant in their documents associated with the Amended Development Application, in response to contentions raised by the Respondent in respect of contamination.

(ii) The Respondent did not raise any further contentions as part of the ASOFC.

(iii) The experts for the Applicant and Respondent have prepared a joint position statement in respect of contamination which was filed on 30 September 2020 (Contamination JPS).

(iv) At clause 10 of the Contamination JPS the experts agree that the site can be made suitable for the proposed use as required by clause 7 of the SEPP55.

(v) Condition 2 of the proposed draft conditions of consent provides that prior to any other works being undertaken on the site, the site remediation works shall be carried out in accordance with the approved Remedial Action Plan prepared by EHO Consulting, report reference JN00869, dated 19 June 2020.”

3. Sydney Regional Environmental Plan No 20—Hawkesbury–Nepean River (No 2 1997) (SREP 20):

“(a) For the purposes of clause 4 of the SREP 20, the parties agree that the Court may approve the Amended Development Application considering

(i) the general planning considerations set out in clause 5 applicable to the proposed development., and

(ii) the specific planning policies and related recommended strategies set out in clause 6 applicable to the proposed development.

(b) The Amended Development Application seeks consent for remediation pursuant to clause 11(4).”

4. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH):

“(a) The parties agree that that the Court can be satisfied that relevant consideration have been given to those matters contained at part 2 Division 3 of the SEPPARH.

(b) In this regard the Court would be satisfied that:

(i) the land is in a land appropriately zoned in compliance with clause 26;

(ii) The Amended Development Application complies with the standards that cannot be used to refuse an application in clause 28;

(iii) The Amended Development Application complies with the standards for boarding houses in clause 29; and

(iv) The Amended Development Application satisfies the standards for boarding houses in clause 30.

(c) The experts for the parties have considered the matters in respect of character of the local area at clause 30A and agree that the development is compatible with the character of the local area and have stated their reasons in a Planning Joint Position Statement (Planning JSP). The Planning JSP was filed with the Court on 1 October 2020.”

5. Penrith Development Control Plan 2014:

“(a) The parties agree that the Amended Development Application can be approved having regarding to the provisions of the Penrith Development Control Plan 2014.”

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

“(a) The parties agree that the Court can be satisfied that an updated BASIX certificate dated 9 October 2020 (has been issued to the Council in respect of the amended plans submitted with the application and the BASIX certificate complies with all the relevant requirements.”

7. Remaining matters in section 4.15(1):

“(a) The parties agree that the Amended Development Application can be approved taking into consideration the matters in section 4.15(1)(b) – (e) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

(b) The parties agree that the submissions of objectors are a relevant consideration under section 4.15(1)(d) of the EP&A Act. The parties agree that the submissions of objectors can be taken into account and the Amended Development Application approved.”

8. Conditions of consent:

“(a) The parties have agreed on condition of consent. The parties agree that the conditions of consent are lawful having regard to the provisions of section 4.16 and 4.17 of the EP&A Act and relevant legal principles.”

9. Control and direction of Panel:

“(a) Under section 8.15(4) of the EP&A Act the Respondent is to notify the Panel of the appeal and is subject to the control and direction of the panel in connection with the conduct of the appeal. The Respondent confirms that the provisions of section 8.15(4) have been complied with and that it is authorised to enter into a section 34 agreement.”

8. 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 comprehensively provided by the parties and set out above at [7]. In addition to those reasons I am satisfied that the submissions received by the Respondent and the evidence given by the resident objectors have been appropriately considered and addressed by the Proposed Development as amended and the agreed draft conditions of consent, in particular, I note the following consent conditions:

1. Consent condition 1 includes compliance with the:

1. Operational Plan of Management dated 15 June 2020; and

2. Remedial Action Plan prepared by EHO Consulting, report reference JN00869 dated 19 June 2020.

2. Consent condition 4 requires all mechanical air conditioning units to be located within the building.

3. Consent conditions 44, 45 and 77 address the method of construction of the basement carpark and require the provision of a dilapidation report following construction of the basement carpark.

9. 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.

10. The Court orders that:

1. The appeal is upheld.

2. Development Application DA19/0705 for the demolition of existing structures, land remediation works, and construction of a two-storey boarding house containing 11 boarding rooms, a manager’s room and basement car parking and associated site works at 6 Edith Street Kingswood NSW 2747 is approved subject to the conditions at Annexure “A”. The approved plans are at Annexure “B”.

…………………….

E Espinosa

Commissioner of the Court

Annexure A (247860, pdf)

Annexure B (2006772, pdf)

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Decision last updated: 23 October 2020