Lombardi v Bayside Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lombardi v Bayside Council [2023] NSWLEC 1184

Hearing dates:

Conciliation Conference 17 January, 15 February and 14, 24 and 30 March 2023

Date of orders:

20 April 2023

Decision date:

20 April 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent no. DA2019/250 is modified in the terms in Annexure A.

(3) Development consent no. DA2019/250 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent – conciliation conference – agreement between the parties - orders

Legislation Cited:

Bayside Local Environmental Plan 2021

Environmental Planning and Assessment Act 1979, s 4.15, 4.56, 4.70

Environmental Planning and Assessment Regulations 2000, cl 121B

Land and Environment Court Act 1979, s 34

Rockdale Local Environmental Plan 2011

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Building Sustainability Index) 2004

State Environmental Planning Policy (Housing) 2021

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:

Lombardi v Bayside Council [2020] NSWLEC 1397

SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65

Texts Cited:

Rockdale Development Control Plan 2011

Category:

Principal judgment

Parties:

Daniel Lombardi (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor)(Applicant)
A Seton (Solicitor)(Respondent)

Solicitors:
Storey & Gough (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

22/295302

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application No. MDA-2022/90 to modify Development Consent No. DA-2019/250 (the Development Consent) granted by the Land and Environment Court on 27 August 2020 (Lombardi v Bayside Council [2020] NSWLEC 1397) for the demolition of existing structures and construction of a two-storey boarding house containing eight single rooms (the Proposed Modification) at 9 Fleet Street, Carlton legally described as Lot 1 in DP 921700 (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 17 January, 15 February, 14 March, 24 March and 30 March 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement that the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing) was not applicable to the Proposed Modification for two reasons, being firstly that the Development Consent did not include an affordable housing component as defined by the EPA Act where “affordable housing” means “housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument”. Secondly, the Proposed Modification is not consistent with the definition of “boarding house” used in SEPP Housing from the Dictionary, Standard Instrument – Principal Local Environmental Plan which reads as follows:

“boarding…