Lombardi v Georges River Council

[2023] NSWLEC 1451

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lombardi v Georges River Council [2023] NSWLEC 1451

Hearing dates:

Conciliation Conference 5, 28 June, 17 July 2023 [amended plans filed 18 July 2023]

Date of orders:

15 August 2023

Decision date:

15 August 2023

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No DA2021/0361 for alterations and additions to existing dwelling house and change of use into 8 room boarding house at 50 Lily Street, Hurstville known as Lot 56 in DP 57673, subject to the conditions of consent in Annexure A.

(3) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions – change of use to boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cl 1.8A

Hurstville Local Environmental Plan 2012

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, Pt 2, Div 3, cll 26, 27, 28, 29, 30, 30A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 10.2, Ch 10, Pt 10.3, Div 2

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

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

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

Category:

Principal judgment

Parties:

Carmelina Lombardi (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
A Gough (solicitor) (Applicant)
J Hewitt (solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/86674

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) from the refusal by the Georges River Council (the Council) of DA2021/0361 (the Development Application) for alterations and additions to the existing dwelling house and change of use to a boarding house containing 8 self-contained boarding rooms (the Proposed Development) at 50 Lily Street, Hurstville, known as Lot 56 in DP557673 (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 site on 5 June 2023 with follow ups at Court. I presided over the conciliation conference.

3. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed issues raised in the conciliation conference, the Council’s contentions and the original reasons for the refusal of consent. The Applicant amended the plans and provided additional documentation to Council. Additional expert reports were prepared to support the amended plans including a sight line analysis, BASIX Certificate, Plan of Management, Accessibility Review Report and Acoustic Report. The amendments collectively increase the internal amenity of the rooms and common areas within the proposed boarding house, provide a superior landscape outcome and increase safety for users of the rear lane.

4. The parties are of the view that the amended plans and documentation, which the applicant has provided, have adequately addressed the contentions set out in the Council’s Statement of Facts and Contentions.

5. The amended plans were approved by Council pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the amended Development Application with conditions.

6. Section 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to grant consent to the amended Development Application to carry out the works and allow the change of use now prescribed by the amended proposal.

8. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Statement filed on 18 July 2023. The statutory planning controls relevant to the proposed development and the Site are listed in the Council’s Statement of Facts and Contentions filed in the Court.

9. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following matters.

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

10. The development application is accompanied by a BASIX Certificate prepared with respect to the amended plans.

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Section 4.6 nominates matters that must be considered before a development application is determined. By reference to s 4.6(4), the land:

is not within an investigation area;

does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the contaminated land planning guidelines; and

sufficient knowledge of the previous residential (and lack of Table 1 use of the land) purpose exists.

12. Having regard to the above, s 4.6(2) does not oblige the provision of a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

State Environmental Planning Policy (Affordable Rental Housing) 2009

13. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP), inclusive of boarding house provisions at Ch 2, does not apply to the development by virtue of savings provisions at Sch 7A s 2(1)(a). The provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP), apply by virtue of Sch 7A s 2(2) of the Housing SEPP.

14. The proposed development is defined as a boarding house under Pt 2 div 3 of the ARH SEPP. Pursuant to cll 26, 27 and 28, boarding houses are permissible with consent.

15. There are no jurisdictional impediments raised by the application of cll 29, 30 and 30A of the ARH SEPP to the amended DA such that the Court cannot grant consent to the proposed development. I accept the analysis set out in the parties Statement.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Pursuant to s 10.2(2), the Site in not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor is it shown as containing a heritage item. There are no relevant matters referred to in Ch 10 Pt 10.3 Div 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 required to be taken into consideration by the consent authority before granting development consent.

Hurstville Local Environmental Plan 2012

Zoning and Permissibility

17. The Site is zoned R2 Low Density Residential. The proposed use is defined as a boarding house and is permissible with consent in the zone. The amended DA complies with the building height and Floor Space Ratio development standards that apply to the site.

Georges River Local Environmental Plan 2021

18. The Georges River Local Environmental Plan 2021 (GRLEP) came into force on 8 October 2021. Pursuant to cl 1.8A, development applications made before the commencement of the GRLEP which were not finally determined are to be determined as if the GRLEP had not commenced. The Site continues to be zoned R2 Low Density Residential under the GRLEP. Boarding houses are prohibited in the R2 zone under GRLEP. The proposed development however is not consistent with the definition of “boarding house” under the GRLEP and is permissible with consent under the ARH SEPP as noted above.

Conclusion

19. For the above reasons and based on the evidence before me and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

20. 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. 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.

Notations

21. The Court notes:

Site Roof Plan	A.200 (Rev LEC P5)		Kink Architects	29 June 2023
Floor Plans + Area Diagrams	A.300 (Rev LEC P5)		Kink Architects	29 June 2023
Elevations	A.400 (Rev LEC P5)		Kink Architects	29 June 2023
Sections	A.500 (Rev LEC P5)		Kink Architects	29 June 2023
Shadow Diagrams	A.600 (Rev LEC P5)		Kink Architects	29 June 2023
Landscape Plans
Landscape Planting Plan	L/01/1-K26804		Michael Siu, Landscape Architects	13 June 2023
Supporting Documentation
BASIX Certificate No.A429074_03		Sustainability – Z Pty Ltd		30 June 2023
Proposed Boarding House Development Traffic and Parking Assessment		TTPA		September 2021
Traffic - Sight Line Analysis		Transport Strategies		20 June 2023
Plan of Management		Chapman Planning Pty Ltd		21 June 2023
Accessibility Review Report		Abe Consulting		1 June 2023
Acoustic Report		Koikas Acoustics		10 July 2023

1. Georges River Council, as the relevant consent authority has agreed, pursuant to clause 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the Development Application in accordance with the documents listed below:

Plan name	Drawing Number	Prepared by	Dated
Amended Architectural Plans
Existing / Demolition Plan & Site / Roof Plan	A.100 (Rev LEC P5)	Kink Architects	29 June 2023

Orders

22. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application No DA2021/0361 for alterations and additions to existing dwelling house and change of use into 8 room boarding house at 50 Lily Street, Hurstville known as Lot 56 in DP 557673, subject to the conditions of consent in Annexure A.

3. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the Development Application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 15 August 2023