MJ Hunter Enterprises Pty Ltd v Inner West Council

[2020] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:

MJ Hunter Enterprises Pty Ltd v Inner West Council [2020] NSWLEC 1516

Hearing dates:

Conciliation conference on 18 August 2020, 3, 4 September 2020 and 13 October 2020

Date of orders:

28 October 2020

Decision date:

28 October 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to orders at [20]

Catchwords:

DEVELOPMENT APPLICATION – boarding house – alterations and additions – conciliation conference – agreement between the parties – orders

Legislation Cited:

Draft State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Marrickville Local Environmental Plan 2011

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Category:

Principal judgment

Parties:

MJ Hunter Enterprises Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/40647

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Inner West Council (Council) of development application, DA201900016 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 696.1m² parcel of land at 11-13 Hunter Street, Lewisham, being Lot 30 in Section 2 of DP275 (the site). The DA was originally lodged with the Council on 16 January 2019 based on plans prepared by Archi-Build International (Issue A dated 30/11/18). It sought consent for alterations and additions to an existing boarding house, including demolition of a single-storey part of the premises at the rear; internal alterations to the ground floor to provide a side entry, Manager’s room, central hallway extension; two-storey addition at the rear containing at ground level 3 new boarding rooms, each with a bathroom and kitchenette, a common sitting room and common laundry, and on the first floor 4 new boarding rooms, each with bathroom and kitchenette; and associated landscaping works. The proposed development results in an increase in the number of boarding rooms from 12 to 18, including the Manager’s room.

3. The DA was notified to surrounding residents between 22 January 2019 and 12 February 2019. Twelve submissions by way of objection were received. In response to requests from Council, the Applicant provided additional material and amended plans between the period 26 March 2019 to 14 October 2019, including a clause 4.6 objection to the floor space ratio (FSR) development standard. Council refused the DA, as amended, on 19 November 2019.

4. The applicant filed the Class 1 Application with the Court on 7 February 2020. On 5 March 2020 the Council filed with the Court its Statement of Facts and Contentions (SOFC), detailing nine matters in contention.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. The conciliation conference, at which I presided, was held on 18 August 2020, 3, 4 September 2020 and 13 October 2020. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference.

6. In response to the SOFC and as a result of the discussions at the conciliation conference, amended plans prepared by Archi-Build International, Issue D dated 05/08/20 (final amended plans) were submitted to Council and formed the basis of the s34 agreement that was filed with the Court on 13 October 2020.

7. The main changes between the amended DA plans that were refused by Council (prepared by Archi-Build International, Issue C dated 09/09/19) and the final amended plans the subject of the s34 agreement can be summarised as:

1. The setback of the ground floor addition from the rear (eastern) boundary has increased 8.201m to 10.136m, and landscaping increased.

2. The setback of the first floor addition from the rear (eastern) boundary has increased 11.523m to approximately 18.5m.

3. The floor planning of the addition at the rear has been amended to fit within the reduced building envelope, and as a result the total number of rooms has decreased from 18 to 15, each containing one resident.

4. A communal living area of 30m² has been provided at the rear of the property on the ground floor, with access to the rear communal open space.

5. The FSR has been reduced from 0.72:1 to 0.599:1.

6. The roof form of the rear additions and all elevations, except the west (street) elevation, have been amended to reflect the floor plan changes.

8. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in paragraphs 9 to 18 below.

9. The Marrickville Local Environmental Plan 2011 (MLEP) is the relevant local planning instrument applying to the site. I am satisfied that the development is for the purposes of a “boarding house” which is permissible with consent in the R2 Low Density Residential Zone (R2 Zone) applying to the site, and that the development meets the objectives of the R2 Zone found at cl 2.3 of the MLEP. The development is also compliant with the development standards for height of buildings at cl 4.3 and FSR at cl.4.4 of the MLEP and therefore the DA does not require approval of any clause 4.6 variations to development standards.

10. The site is within the Lewisham Estate Heritage Conservation Area (HCA). The effect of the proposed development on the heritage significance of the HCA has been considered as required by cl 5.10(4) of the MLEP.

11. The parties have confirmed they have considered the relevant matters arising in cl 6.1 of the MLEP relating to acid sulphate soils.

12. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the subject development. On 28 February 2019 Draft State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019 (amending SEPP) commenced. The amendment inserted a new clause 30AA which provided as follows:

30AA Boarding houses in Zone R2 Low Density Residential

A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.

13. Clause 54C of the amending SEPP included a savings and transitional provision in respect of the amendment, in the following terms:

54C Savings and transitional provisions – 2019 amendment

(1) This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement.

(2) The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced.

14. The subject development application was lodged (on 16 January 2019) and not determined prior to the commencement of the amending SEPP (on 28 February 2019). As a result, the prohibition in cl 30AA does not apply because the Court acting as consent authority must determine the development application as if the amending SEPP (and therefore cl 30AA) had not commenced.

15. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. The proposed development complies with the relevant standards.

16. The development that is also compatible with the character of the local area, as required by cl 30A of the SEPP ARH.

17. For the purposes of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) consideration has been given to whether the subject site on which the development is to occur is contaminated. The site has been and continues to be used for a residential use. The parties are satisfied that the subject site does not require further consideration under cl 7 of the SEPP 55.

18. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a Certificate number 1132820M dated 14 September 2020 has been provided demonstrating compliance with the BASIX SEPP.

19. 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.

20. The Court orders:

1. Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 1 of Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $3,000 payable within 28 days of this agreement.

3. The appeal is upheld.

4. Development consent is granted to development application DA201900016 for alterations and additions to an existing boarding house with a total of 15 single rooms at 11-13 Hunter Street, Lewisham is approved subject to the conditions in Annexure A.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (248014, pdf)

Plan (271519, pdf)

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Decision last updated: 28 October 2020