Massaad v Canterbury-Bankstown Council

[2022] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation:

Massaad v Canterbury-Bankstown Council [2022] NSWLEC 1328

Hearing dates:

Conciliation conference on 21 June 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,500.

(2) The appeal is upheld.

(3) Development Consent is granted to DA-745/2021 for demolition of existing structures and the erection of a 59 room boarding house on the land comprising all of the land contained within SP 32395 known as 5 to 7 Fifth Ave, Campsie subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – boarding house – conciliation conference – agreement reached – orders made

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 4.1C,4.3, 4.4
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7,8.10, 8.15
Environmental Planning and Assessment Regulation 2000, Sch 1, cll 49, 55
Environmental Planning and Assessment Regulation 2021, Sch 6, cl 3
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A
State Environmental Planning Policy (Housing) 2021, Sch 7A, cl 2
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Category:

Principal judgment

Parties:

Fouad Massaad (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/310491

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a 59 room boarding house in Campsie. The land the subject of the DA comprises all of the land contained within SP 32395 and is known as 5 to 7 Fifth Ave Campsie (the Site).

2. The DA was made to the Council on 14 September 2021. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 2 November 2021 the Applicant appealed to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 21 June 2022. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 10 June 2022 and is supported by an Agreed Statement – Jurisdictional Prerequisites provided by the parties on 20 June 2022.

5. The agreement involves the Court exercising the functions of the consent authority in accordance with s 4.16(1) of the EPA Act by granting development consent to the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent. The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA.

6. The amended proposal reduces the number of rooms in the boarding house from 78 to 59 and makes consequential changes to the number of car parking spaces (reduced from 39 to 29), motorcycle parking spaces (reduced from 16 to 12) and bicycle parking spaces (also reduced from 16 to 12). The amended proposal modifies the roof form in a manner the Council accepts will be consistent with the existing and desired future character of the local area and makes a number of minor design changes which include the addition of a visual display on the left side of the driveway, the inclusion of an entry door to the manager’s room,  the addition of a fire exit and the replacement of the previously proposed “miro white” bricks with a darker tone brick.

7. Under s 34(3) of the LEC Act, I must 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.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The DA has been made with the consent of the owner of the Site in accordance with cl 49(1)(b) of the EPA Regulation.

2. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act.

3. The proposed development is for the purpose of a boarding house.  The Land is within zone R4 High Density Residential under the Canterbury Local Environmental Plan 2012 (the LEP). Development for the purposes of a boarding house is permissible with development consent on land within that zone.

4. In determining the DA, I have had regard to the objectives of the R4 High Density Residential zone in the LEP. Those objectives include the following:

• To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

5. The proposed development is consistent with those objectives.

6. Clause 4.1C of the LEP provides that development consent must not be granted for a boarding house on land within Zone R4 High Density Residential unless the land has an area of not less than 1,000m² and a width at the front building line equal to or greater than 20m. The Site complies with these requirements as it has an area of approximately 1,012m² and is 20.115m wide at the front building line.

7. The parties’ agreement provides for the height of the proposed development to be reduced so as to comply with the applicable development standard in the LEP relating to building height (cl 4.3).

8. Pursuant to cl 4.4(2) and the Floor Space Ratio Map of the LEP, the floor space ratio (FSR) applicable to the Site is 1.6:1. However, cl 29(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP(ARH)) precludes a consent authority from refusing development consent if the FSR of the Proposed Development is not more than the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus an additional 0.5:1. The SEPP(ARH) continues to apply to the DA despite its repeal by the State Environmental Planning Policy (Housing) 2021 on 26 November 2021: Sch 7A, cl 2(1)(a). The applicable maximum FSR is therefore 2.1:1. The FSR of the proposed development is 1.66:1.

9. Other provisions of the SEPP(ARH) are also relevant to the DA. Clause 30(1) of the SEPP(ARH) provides that a consent authority must not consent to boarding house development to which that policy applies unless it is satisfied of each of the matters set out in subcll 30(1)(a)–(h). The Statement of Environmental Effects (SEE) assesses the DA against each of these matters and I am satisfied that the proposed development complies with such of the provisions as are relevant to the proposed development.

10. Clause 30A of the SEPP(ARH) provides that a consent authority must not consent to boarding house development to which the policy applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The parties are agreed, and I accept, that the scale of the proposed development, coupled with its height, setbacks, materials and finishes, as well as the amended roof form provide for the proposal which will sit comfortably within its visual context and will be compatible with both the existing and desired future character of the local area.

11. State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the Land. Clause 4.6(1) provides that a consent authority must not consent to the carrying out of any development on land unless—

(a)  it has considered whether the land is contaminated, and

(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

12. The parties have informed the Court, and I accept, that the Site has been used for low density residential purposes for many years and there is no indication that any contaminant generating uses have been carried out on it. The continued use of the Land for residential purposes will not change and I am satisfied that the Land is suitable for the proposed ongoing residential use.

13. Clause 2A(1) of Sch 1 to the EPA Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX certificate for the development. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. A BASIX Certificate (Certificate Number 1230777M_02 prepared by Sustainable Thermal Solutions dated 26 May 2022 accompanies the DA.

14. The DA was publicly notified between 29 September and 19 October 2021. The Council received one submission during this period which raised concerns about solar access, privacy, impact of land value, traffic, noise and bulk and scale. The parties have informed the Court, and I am satisfied, that the amended application appropriately addresses the matters raised by the objector.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that:

1. The Council, as the relevant consent authority, has agreed under cl 55(1) of the EPA Regulation to the Applicant amending the development application DA Number DA – 745/2021 filed with the Court on 2 November 2021.

2. The Applicant uploaded the amended application onto the NSW Planning Portal on 8 June 2022.

3. The Applicant filed the amended application with the Court on 8 June 2022.

12. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $3,500.

2. The appeal is upheld.

3. Development Consent is granted to DA-745/2021 for demolition of existing structures and the erection of a 59 room boarding house on the land comprising all of the land contained within SP 32395 known as 5 to 7 Fifth Ave, Campsie subject to the conditions set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A.pdf

**********

Decision last updated: 28 June 2022