Nicholas v Cumberland Council

[2018] NSWLEC 1653

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nicholas v Cumberland Council [2018] NSWLEC 1653
Hearing dates:	Conciliation conference on 30 November 2018
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [15] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; boarding house; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Texts Cited:	Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Souad Nicholas (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: P Clay SC (Applicant)   Solicitors: Macquarie Lawyers (Applicant) P Hudson, Marsdens Law Group (Respondent)
File Number(s):	2018/162397
Publication restriction:	No

Judgment

1. COMMISSIONER: On 3 April 2018, the applicant lodged a Development Application No 2018/111/1 (DA) seeking consent for the demolition of existing structures and the construction of a two storey, 11 room boarding house accommodating a total of 19 lodges, offering 3 car parking spaces and 3 motorbike spaces at 6 Monterey Street, South Wentworthville (the site).

2. The application was made pursuant provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

3. Before any determination was made, the applicant exercised his right of appeal to the Court on a deemed to have been refused basis pursuant to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Council’s Statement of Facts and Contentions (SOFC) dated 11 July 2018 sets out the background and statutory controls and the contentions. It records that the site is located within the R2 Low Density Residential zone under the Holroyd Local Environmental Plan 2013 (LEP). Finlayson Creek which is zoned RE1 Public Recreation also adjoins the site to the northwest.

5. The site is surrounded by a mix of single storey dwellings and dual occupancy developments.

6. The DA was notified and 6 submissions objecting to the application were received by the Council. The issues raised in the submission included:

• traffic impact;

• incompatibility with the character of the Street;

• bulk and scale of the development;

• exacerbation of flood impacts;

• adverse social impact and

• security/crime concerns

7. Following assessment, the Council decided that the application should be refused because the design was not compatible with the character of the local area in terms of building appearance and front setback treatment. In that regard, cl 30A of the SEPP ARH mandates that the consent authority (now the Court) must not grant consent to the development unless it has taken into consideration whether the design is compatible with the character of the local area.

8. The clause provides:

30A Character of local area

A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

9. The parties agree that the “local area” for this application is the visual catchment of the site when viewed from within the site and directly adjacent to the site from the Street. They also agree that the local area is characterised by a mixture of low density one and two-storey detached houses of fibrous cement, weatherboard and brick construction with pitch roots and significant landscaped area in front in the front and rear yards. Car parking is predominantly provided in the form of a detached garage behind front building alignments and accessed via private driveway alongside the boundary. Overall, the character of the local area is in accordance with the low density zoning.

10. In order to be compatible, the Council contends that the development should contain or at least respond to the key aesthetic elements of the surrounding area. The original proposal included 60% of the front yard area as hard stand spaces to accommodate off-street parking and the garbage bin area. This was considered to be incompatible with the existing character of the local area which is relevant by dint of cl 30A. The development was also found to be non-compliant with parking requirements and did not provide a safe pedestrian access: cl 29(2) of the SEPP ARH and OB of Part B Section 1.11 Car parking and Roads of Holroyd Development Control Plan 2013. The Council’s contentions are particularised in Part B of the SOFC. I have read them and do not need not to repeat them at this time because they have been addressed to the Council’s satisfaction by the amended plans.

11. The parties now invite me to approve the development on the terms as set out in the agreement they reached under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) at the s 34 conciliation conference which I facilitated on 30 November 2018, namely:

1. The Applicant is granted leave to rely on the following plans and documents:

Architectural plans prepared by Design Cubicle, Job Number 170882;

Drawing No.	Title	Issue	Date
DA100	Site Plan	B	16 August 2018
DA201	Ground Floor Plan	B	16 August 2018
DA202	First Floor Plan	B	16 August 2018
DA203	Roof Plan	B	16 August 2018
DA300	Elevations 1 of 2	B	16 August 2018
DA301	Elevation 2 of 2	B	16 August 2018
DA400	Sections	B	16 August 2018
DA604	Demolition Plan	B	16 August 2018

Landscape plans prepared by Vision Dynamics:

Drawing No.	Title	Rev.	Date
18050 DA1	Landscape Concept Plan	B	23 August 2018

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the EPA Act, in the sum of $2,000;

3. The appeal is upheld;

4. Development consent is granted to Development Application No. 2018/111/1 for the demolition of existing structures and the construction of a two storey 10 room boarding house accommodating a total of 17 lodgers, with 5 car parking spaces and 3 motorbike spaces, lodged pursuant to SEPP ARH, is approved subject to the conditions of consent annexed hereto and marked “A”.

12. 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.

13. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant a conditional consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The amended design reduces the number of boarding rooms from 19 to 10 and provides accommodation for 17 lodgers. There are now 5 car parking spaces and 3 motorbike spaces. Relevantly, the Council is now satisfied that the design is compatible with the character of the local area and all of its contentions are resolved. Having seen the site and considered the amended design I am also satisfied that the development is compatible with the local area as required by cl 30A of the SEPP ARH. In that regard, the reduction in the number of boarding rooms and the resultant reduction in car parking within the frontage better intergrates the design with the local area so that it is compatible.

14. Accordingly, 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. And 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.

15. The orders of the Court are:

1. The Applicant is granted leave to rely on the following plans and documents:

Architectural plans prepared by Design Cubicle, Job Number 170882;

Drawing No.	Title	Issue	Date
DA100	Site Plan	B	16 August 2018
DA201	Ground Floor Plan	B	16 August 2018
DA202	First Floor Plan	B	16 August 2018
DA203	Roof Plan	B	16 August 2018
DA300	Elevations 1 of 2	B	16 August 2018
DA301	Elevation 2 of 2	B	16 August 2018
DA400	Sections	B	16 August 2018
DA604	Demolition Plan	B	16 August 2018

Landscape plans prepared by Vision Dynamics:

Drawing No.	Title	Rev.	Date
18050 DA1	Landscape Concept Plan	B	23 August 2018

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $2,000;

3. The appeal is upheld;

4. Development consent is granted to Development Application No. 2018/111/1 for the demolition of existing structures and the construction of a two storey 10 room boarding house accommodating a total of 17 lodgers, with 5 car parking spaces and 3 motorbike spaces, lodged pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009, is approved subject to the conditions of consent annexed hereto and marked “A”.

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A (232 KB, pdf)

Plans - Architectural (680 KB, pdf)

Plan - Landscape (1.87 MB, pdf)

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Decision last updated: 17 December 2018