Parnell Strathfield Pty Ltd v Canterbury-Bankstown Council

[2022] NSWLEC 1341

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parnell Strathfield Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1341

Hearing dates:

Conciliation conference on 28 June 2022

Date of orders:

4 July 2022

Decision date:

04 July 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA473/2021 for the demolition of existing structures, excavation of basements and the erection of a boarding house on the land described as Lots 1 and 2 DP 901237 known as 15 and 17 Fourth 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, 6.1, 6.2, 6.4, 6.6
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 4.47, 8.7, 8.10
Environmental Planning and Assessment Regulation 2000, Sch 1, cll 3, 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 30, 30A
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
Water Management Act 2000, s 90

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Arrage v Inner West Council [2019] NSWLEC 85

Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2021] NSWLEC 116

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

Texts Cited:

NSW Department of Planning and Environment, Transport Corridor Outdoor Advertising and Signage Guidelines (November, 2017)

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Parnell Strathfield Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
J Lazarus SC (Applicant)
T Ward (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Pikes & Verekers (Respondent)

File Number(s):

2021/335540

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for a boarding house in Campsie. The land the subject of the DA comprises Lots 1 and 2 DP 901237 and is known as 15 and 17 Fourth Ave, Campsie (the Site).

2. The DA was made to the Council on 16 June 2021. When the DA had not been determined by the Council within the period after which it was taken to have been refused, on 25 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 27 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 21 June 2022 (Annexure A to the agreement, which contains the agreed conditions of consent, was lodged with the Court on 28 June 2022) and is supported by an amended Agreed Statement – Jurisdictional Prerequisites provided by the parties on 28 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 scale of the proposed development with a consequential reduction in its environmental impact. The amendments to the DA may be summarised as follows:

• The number of boarding rooms has been reduced from 49 to 40 plus a manager’s room. The boarding rooms are all double rooms with a kitchen and bathroom and are between 16 and 24.5 m² in area;

• The proposed development now provides 22 basement car parking spaces (including 3 accessible spaces), 9 motorcycle parking spaces and 10 bicycle spaces;

• The floor area has been reduced from 1,411 m² to 1,251 m²;

• The basement car park has been amended to increase the setbacks to the boundary;

• The ground floor has been amended to:

•  Relocate the driveway and temporary bin area;

•  Provide deep soil setbacks to the northern and southern boundaries;

•  Relocate the communal room and associated communal open space to the rear of the building;

•  Relocate the main lift core, stairs and egress;

•  Provide an above ground OSD basin with landscaping within the front boundary; and

•  Provide central pedestrian access to the street frontage;

• The level 1 rooms, associated lift and stairs have been reconfigured;

• The level 2 rooms have also been reconfigured as 9 split level rooms with attics above;

• The upper level of the building is designed as an attic within a pitched roof form with a 30 degree pitch and dormer windows and skylights. The attic contains 9 rooms which are connected to the rooms on level 2 below;

• The elevations have been amended to include:

•  A change to the construction materials including face bricks, metal panels, off-form concrete, steel balustrades and pitched tile roof form;

•  Defined front entry; and

•  Articulation of the north elevation at the stair; and

• An increase in both the landscaped area and deep soil landscape area.

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 Site 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.

The proposed development is consistent with those objectives.

5. 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 1,000 m² and a width at the front building line equal to or greater than 20 m. The Site complies with these requirements as it has an area of approximately 1,011.8 m² and is 20.12 m wide at the front building line.

6. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The height of the proposed development is approximately 11.5 m which is not greater than the applicable maximum building height of 11.5 m. The FSR of the proposed development is 1.24:1 which is less than the maximum FSR of 1.4:1.

7. Clause 6.1 of the LEP deals with acid sulfate soils and applies to the Site as it is identified on the Acid Sulfate Soils Map as Class 5 land.  Clause 6.1(3) provides that development consent must not be granted for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. The parties agree, and I accept, that the acid sulfate soils management plan prepared by Foundation Earth Sciences dated 25 October 2021 is suitable and satisfies the requirements of cl 6.1(3) of the LEP.

8. Part of the proposed development involves earthworks, being the excavation required for the basement parking levels. Clause 6.2(3) of the LEP requires the consent authority to consider the matters specified in pars 6.2(3)(a) - (h). The parties agree, and I am satisfied, that the DA has addressed the required matters and there are no adverse impacts from the proposed earthworks.

9. Clause 6.4(3) of the LEP applies to the Site and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

The DA includes detailed plans in relation to stormwater management prepared by Alpha Engineering and Development dated 26 May 2022 and condition 2.22 of the agreed conditions of consent impose additional obligations on the Applicant in relation to the design of the stormwater drainage system for the proposed development. I accept the agreed submission of the parties that the matters set out in cl 6.4(3) of the LEP are satisfactorily addressed by the DA and the proposed conditions of consent.

10. Clause 6.6 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required —

the supply of water,

the supply of electricity,       

the disposal and management of sewage,

stormwater drainage or on-site conservation,

suitable vehicular access.

The Site is in an established urban area and I accept the joint position of the parties that all required services are available and will be constructed or supplied to a satisfactory level of compliance with the requirements of all relevant authorities.

11. The State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP(ARH)) applies 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 Jurisdictional Statement provided by the parties discusses (at [18] and [19]) how the proposed development achieves 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.

12. 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 proposed development is compatible with the character of the local area because:

1. boarding houses are a permissible use in the R4 High Density Housing zone;

2. the site is surrounded by R4 High Density Housing zoned sites;

3. the built form of the proposed development is:

1. consistent with the housing typology within the R4 High Density Residential zone under the LEP; and

2. mitigates amenity impacts to adjoining properties in terms of privacy and overshadowing.

4. the proposed materials, finishes and landscape works are consistent with nearby development and compatible with the planning controls.

5. the building now presents as a three storey building with an attic which is consistent with the character of the streetscape.

13. State Environmental Planning Policy (Resilience and Hazards) 2021 applies to the Site. 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.

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 Site for residential purposes will not change and I am satisfied that the Site is suitable for the proposed ongoing residential use.

14. 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 1209397M_02) prepared by AENEC dated 25 May 2022 accompanies the DA.

15. The DA was publicly notified between 7 July 2021 and 27 July 2021. The Council received 10 submissions which raised concerns about street parking, noise, bulk and scale, height, privacy, solar access, impact on land values and compatibility with the character of the area. The parties have informed the Court, and I am satisfied, that the submissions have been considered by the parties and are appropriately addressed by the amended proposal and the proposed conditions of consent.

16. The proposed development will require the temporary extraction of groundwater from the Site during its construction and this requires a water management work approval (water supply work) under s 90 of the Water Management Act 2000. Development that, in order for it to be carried out, requires both development consent and also water management work approval is “integrated development” within the meaning of s 4.46(1) of the EPA Act. Section 4.47(2) of the EPA Act provides that, before granting development consent to an application for consent to carry out integrated development, the consent authority must obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. General terms of approval were issued by the relevant approval body, WaterNSW, in relation to the proposed development on 31 March 2022 and these terms have been incorporated into the conditions of consent in Annexure A.

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 DA473/2021.

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 31 May 2022.

12. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA473/2021 for the demolition of existing structures, excavation of basements and the erection of a boarding house on the land described as Lots 1 and 2 DP 901237 known as 15 and 17 Fourth Ave, Campsie subject to the conditions set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A.pdf

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Decision last updated: 04 July 2022