Orangeville Trust Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1477

Land and Environment Court

New South Wales

Medium Neutral Citation:	Orangeville Trust Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1477
Hearing dates:	Conciliation conference on 26 August 2019
Date of orders:	02 October 2019
Decision date:	02 October 2019
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1)   The applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1. (2)   The applicant is to pay the respondent’s costs thrown away as a result of amended plans pursuant to s 8.15(3) as agreed or as assessed. (3)   Appeal upheld. (4)   Development Application DA 18/0407 for demolition of existing structures and construction of a boarding house comprising 34 boarding rooms and basement parking at 11 Urunga Parade, Miranda is approved subject to the conditions annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPLICATION – 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 State Environmental Planning Policy No 55 – Remediation of Land Sutherland Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Orangeville Trust Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) J Amy (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2018/237571
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 deemed refusal by Sutherland Shire Council (Council) of Development Application No DA18/0407. In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The development application relates to land identified as Lot 21, DP 26174 at 11 Urunga Parade Miranda (the site). The application, as originally submitted to Council on 10 April 2018, sought consent for demolition of existing structures and construction of a new 7 storey boarding house development containing a total of thirty-seven (37) rooms (including one manager’s room) over a common basement of two below ground levels containing parking for 12 cars, 8 bicycles and 8 motorcycles.

3. 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 26 August 2019. I presided over the conciliation conference.

4. The original development application (DA) plans (referred to as Issue A) were amended and as a result of the conciliation conference further amendments were made. The parties reached an agreement based on the Issue F amended plans (dated 28 August 2019) as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The main changes between the Issue A plans as originally submitted and the Issue F plans the subject of the s 34 agreement are the removal of three rooms (to a new total of 34), an increase to the western side boundary setbacks, the addition of a third basement level and reconfiguration of the basement layout, an increase in car spaces from 12 to 17 and a decrease of one bicycle and one motorcycle space.

6. The agreement reached between the parties involves 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. I have formed the opinion that the relevant jurisdictional matters have been satisfied for the reasons set out in [7] below.

7. The relevant jurisdictional matters are:

1. In relation to Sutherland Local Environmental Plan 2015 (SLEP 2015), I am satisfied that the development is for the purpose of a boarding house, which is a permissible use in the R4 High Density Residential zone. I also accept the advice of the parties and the evidence submitted with the amended set of Issue F plans referred to in Condition 1 of the agreed consent (attached at Annexure “A”), that the development does not contravene any development standard in SLEP 2015.

2. In relation to the Urban Design matters for consideration in cll 6.16 and 6.17 of SLEP 2015, I have considered the relevant factors and the development is now satisfactory in this regard.

3. In relation to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP (ARH)), I am satisfied the development reasonably satisfies the aims and relevant provisions of the SEPP (ARH), including the provisions of cl 29(2)(a)-(f); cl 30(1)(a)-(h) and cl 30A, regarding the development’s compatibility with the character of the local area.

4. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 an updated BASIX Certificate, (dated 30 September 2019) has been provided and it demonstrates satisfaction of the requirements of the BASIX SEPP.

5. In relation to State Environmental Planning Policy No 55 – Remediation of Land ( SEPP 55) I accept the advice of the parties that the land has historically been used for residential purposes and does not require further testing pursuant to cll 7(1) and (2) of SEPP 55.

8. 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.

9. The Court orders:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1.

2. The applicant is to pay the respondent’s costs thrown away as a result of amended plans pursuant to s 8.15(3) as agreed or as assessed.

3. Appeal upheld.

4. Development Application DA 18/0407 for demolition of existing structures and construction of a boarding house comprising 34 boarding rooms and basement parking at 11 Urunga Parade, Miranda is approved subject to the conditions annexed hereto and marked “A”.

…………………………

J Bindon

Acting Commissioner of the Court

Annexure A (384 KB)

********

Decision last updated: 02 October 2019