No Dramas Investments Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:	No Dramas Investments Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1294
Hearing dates:	Conciliation conference on 12 June 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1)   The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”. (2) The applicant is to pay the respondent's costs thrown away as agreed or assessed as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (3)   The Appeal is upheld. (4)   Development Application No. DA18/1068 for demolition of existing structures and construction of a three and two storey boarding house comprising 14 rooms with parking for 7 cars, 3 motorcycles and 3 bicycles is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION: boarding house – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sutherland Shire Local Environmental Plan 2015
Category:	Principal judgment
Parties:	No Dramas Investments Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/322438
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by No Dramas Investments Pty Ltd (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/1068 (the application).

2. The application as lodged sought consent under the EPA Act for the demolition of existing structures and construction of a 2-3 storey boarding house comprising 15 rooms with parking for 6 cars on Lot 2 DP 14059, known as 5 Waratah Road, Engadine (the site). The site is on the periphery of the Engadine Town Centre opposite commercial buildings although development immediately adjacent is residential.

3. The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R3 Medium Density Residential zone in which the site is situated under the Sutherland Shire Local Environmental Plan 2015 (the LEP).

4. The application was notified with 291 objections lodged raising a range of issues including concern with the impacts on traffic and parking, the design, and the nature of the development.

5. The Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation, attended the site and heard from a number of the neighbours objecting to the application.

6. At the conciliation, the Council raised a number of contentions in particular that the design of the development was not in keeping with the character of the area, was inappropriate in terms of the setbacks and height given the size and narrowness of the lot, and would result in adverse amenity impacts for occupants. Concern was also raised in terms of the impacts on adjoining trees and with the landscaping proposed. Further, there was insufficient parking, inadequate facilities for waste, and unresolved stormwater issues.

7. During conciliation, the applicant agreed to amend the application to address the Council’s contentions and having regard to issues raised by residents of relevance to consider. These amendments included reducing the number of boarding rooms to 14, providing increased setbacks, and increasing onsite parking with the provision to 7 cars, 3 motorcycles and 3 bicycles.

8. On the basis of these amendments, an agreement was reached that was acceptable to the parties.

9. 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.

10. In addition to the provisions of the LEP, the application is required to be assessed under the provisions of the ARH SEPP. In this regard, the application as amended meets all of the required development standards, including height and FSR, in the LEP and the ARH SEPP. Under the provisions of the ARH SEPP, the height, density and scale of the development cannot therefore be a basis for refusal.

11. Similarly, the application cannot be refused on the basis of parking if 0.5 spaces per room are provided, as is proposed in the amended application with the provision of 7 spaces onsite.

12. I have taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the ARH SEPP. Whilst what is proposed is contemporary with a flat roof, and surrounding residential stock primarily comprises older cottages with pitched roofs, I note that the local area also includes a mixture of medium density and non-residential development, including commercial development opposite and churches and a school in close proximity.

13. New development comprising a different use with a contemporary design can be compatible with, whilst being understandably different from, the prevailing character of the area. Given the amendments to the design, the site’s location and context, and that the height, bulk and scale cannot be grounds for refusal in this instance, I do not consider that the compatibility of the development with the character of the local area to be a basis for refusal in the circumstances.

14. I am therefore satisfied that the parties’ decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act. In making this decision, I make no judgment on the merits of the development.

15. I also note that the required Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

16. Accordingly, the Court orders that:

1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”.

2. The applicant is to pay the respondent's costs thrown away as agreed or assessed as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The Appeal is upheld.

4. Development Application No. DA18/1068 for demolition of existing structures and construction of a three and two storey boarding house comprising 14 rooms with parking for 7 cars, 3 motorcycles and 3 bicycles is approved subject to the conditions set out in Annexure “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (151 KB)

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Decision last updated: 27 June 2019