Platinum West Holdings Pty Ltd v Sutherland Shire Council

Case •

[2021] NSWLEC 1273

•

21 May 2021

Land and Environment Court


New South Wales

Medium Neutral Citation: Platinum West Holdings Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1273
Hearing dates: Conciliation conference on 20 April 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Jurisdiction:Class 1
Before: Peatman AC
Decision:

The Court orders:

(1) The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in Condition 1 of Annexure ‘A’.

(2) The appeal is upheld.

(3) Development Application DA18/1300 for demolition of existing structures and construction of 2 storey boarding house development containing 13 rooms, communal living room and at grade car parking spaces for 7 cars on land legally described as Lot 20 in DP21200 known as 17 Best Crescent, Kirrawee NSW is approved subject to the conditions set out in Annexure ‘A’ hereto.

Catchwords:

DEMOLITION – Construction of Boarding House – 13 boarding rooms – character of the area – conciliation conference – agreement between parties – Orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.16, 4.17, 8.7, 8.10, 8.14

Environment Planning and Assessment Regulation 2000 cll 49, 55, 55A, Sch 1 cl 2A

Land and Environment Court Act 1979 ss 17, 34

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

State Environmental Planning Policy (Infrastructure) 2007 cl 87

State Environmental Planning Policy No 55 – Remediation of Land cl 7

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 26, 27, 29, 30, 30A, 30AA

Sutherland Shire Local Environmental Plan 2015 cll 2.3, 4.3, 4.4, 6.4, 6.14, 6.16

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:Principal judgment
Parties: Platinum West Pty Ltd ABN 21161589206
(Applicant)
Sutherland Shire Council ABN 52018204808 (Respondent)
Representation:

Counsel:
G McKee (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2019/400841
Publication restriction: No

Judgment

  1. COMMISSIONER: The subject proposal consists of demolition of existing structures and construction of 2 storey boarding house development containing 13 boarding rooms, communal living room and at grade car parking spaces for 7 cars, on Lot 20 in Deposited Plan 21200 known as 17 Best Crescent, Kirrawee, NSW, 2232 (the Land) in the Local Government Area of Sutherland Shire Council.

  2. The Applicant lodged Development Application No. 18/1300 (DA) on 7 November 2018 with Sutherland Shire Council (Council). The DA has owner’s consent.

  3. The Land is located on the eastern side of Best Crescent, Kirrawee. Adjoining the Land to the south is a single storey brick tiled house (No. 15 Best Crescent), backing onto the Land on the eastern boundary are single storey dwellings, Sutherland-Cronulla Railway line with pedestrian pathway is to the north and detached dwellings to the west of Best Crescent across the street. The Land is within 400m walking distance from Kirrawee Train Station. Set out below is an aerial view of the Land, with the Land shaded blue.

  1. On 21 November 2018 the DA was notified to surrounding and affected property owners. Subsequently, Council received 48 submissions objecting to the DA.

  2. On 15 May 2019 the Applicant lodged amended plans to the DA with Council, and on 4 June 2019 the DA was renotified to include the amended plans. Subsequently Council received 28 unique submissions objecting to the DA.

  3. On 19 November 2019 the DA was considered by the Sutherland Shire Local Planning Panel and it was determined by way of refusal pursuant to ss 4.16 of Environmental Planning and Assessment Act 1979 (EPA Act).

  4. On 20 December 2019 a Class 1 Application was filed with this Court pursuant to s 8.7 of the EPA Act appealing the Council’s refusal to grant the DA.

  5. On 8 September 2020 a Conciliation Conference was held pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), and it was terminated with the consent of the parties. The presiding Commissioner filed a Report pursuant to s 34(4)(a)(ii) of the LEC Act, which was sent to the parties.

  6. On 20 November 2020 the Applicant filed a Notice of Motion seeking leave to rely upon amended plans and amended supporting documentation. On 26 November 2020 the Court granted leave to the Applicant to rely upon the amended plans and amended documents sought in its Notice of Motion dated 20 November 2020.

  7. On 28 January 2021 Council filed an Amended Statement of Facts and Contentions.

  8. The Court ordered a second Conciliation Conference pursuant to s 34(1) of the LEC Act which was held on 20 April 2021. I presided over the Conciliation Conference.

  9. At the second Conciliation Conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved:

  1. granting leave to amend the DA and rely on the amended plans referred to in Condition 1 of Annexure ‘A’ hereto, pursuant to s 8.14(1) of the EPA Act and cl 55 of the Environment Planning and Assessment Regulation 2000 (EPA Regulations).

  2. granting consent, subject to the Conditions in Annexure “A”, to the DA pursuant to ss 4.16, 4.17 and 8.14 of the EPA Act.

  1. 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. The parties’ decision involves the Court exercising the function under s 8.14 of the EPA Act.

Legislation

Environmental Planning and Assessment Act 1979

Section 4.16 Determination

(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

……

(4) Total or partial consent A development consent may be granted—

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

Note—

See also Division 4.4 for special procedures concerning concept development applications.

……

  1. A)    (Repealed)

(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

(13), (14)    (Repealed)

Section 4.17 Imposition of conditions

(cf previous s 80A)

(1) Conditions—generally A condition of development consent may be imposed if—

(a)  it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or

(b)  it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or

(c)  it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d)  it limits the period during which development may be carried out in accordance with the consent so granted, or

(e)  it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f)  it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or

(g)  it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.

(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

(3)  A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.

(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following—

(a)  one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b)  clear criteria against which achievement of the outcome or objective must be assessed.

(4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition.

(4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance).

……

(6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following—

(a)  making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates,

(b)  completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent,

(c)  remedying any defects in any such public work that arise within 6 months after the work is completed,

(d)  in relation to coastal protection works (within the meaning of the Coastal Management Act 2016), either or both of the following—

  1. )  the maintenance of the works,

(ii)  the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works.

(7)  The security is to be for such reasonable amount as is determined by the consent authority.

(8)  The security may be provided, at the applicant’s choice, by way of—

(a)  deposit with the consent authority, or

(b)  a guarantee satisfactory to the consent authority.

(9)  The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority.

(10)  The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security.

  1. A)    (Repealed) ……

Section 8.7 Appeal by applicant—applications for development consent

(cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2)  For the purposes of this section, the determination of an application by a consent authority includes—

(a)  any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b)  any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3)  An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

Section 8.10 Time within which appeals may be made

(1)  An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or

(b)  12 months after the relevant date, if the relevant date occurs—

  1. )  during the prescribed period, or

(ii)  during the 6-month period immediately before the prescribed period.

prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

Section 8.14 Powers of Court on appeals

(cf previous s 39(6A) Land and Environment Court Act)

(1)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)  The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

(3)  If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and

(b)  in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(4)  If an appeal under this Division relates to integrated development—

(a)  the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and

(b)  the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and

(c)  the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body.

Environmental Planning and Assessment Regulation 2000

Clause 49   Persons who can make development applications

(cf clause 46 of EP&A Regulation 1994)

(1)  A development application may be made—

(a)  by the owner of the land to which the development application relates, or

(b)  by any other person, with the consent of the owner of that land.

(2)  The consent of the owner of the land is not required for a development application made by a public authority, or for a development application for public notification development, if the applicant instead gives notice of the application—

(a)  to the owner of the land before the application is made, or

(b)  by publishing a notice no later than 14 days after the application is made—

  1. )  in a newspaper circulating in the area in which the development is to be carried out, and

(ii)  in the case of an application made by a public authority, on the public authority’s website, or, in the case of public notification development, on the NSW planning portal.

……

Clause 55   What is the procedure for amending a development application?

(cf clause 48A of EP&A Regulation 1994)

(1)  A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.

(2)  If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development.

(3)  If the development application is for—

(a)  development for which concurrence is required, as referred to in section 4.13 of the Act, or

(b)  integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

Clause 55A   Amendments with respect to BASIX commitments

(1)  This clause applies to a development application that has been accompanied by a BASIX certificate pursuant to clause 2A of Schedule 1 or to a development application in relation to BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).

(2)  Without limiting clause 55, a development application may be amended or varied by the lodging of—

(a)  a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and

(b)  if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.

(3)  If an amendment or variation of a development application, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the development application must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.

(4)  In this clause, a reference to the accompanying document is a reference to any document required to accompany a development application pursuant to clause 2 of Schedule 1.

Land and Environment Court Act 1979

Section 17 Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

……

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

  1. There are jurisdictional prerequisites that must be satisfied before the Court can make a decision in the proper exercise of its function. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

  1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARHSEPP) –

  1. Clause 26: Land to which this division applies – the land is zoned R2 Low Density Residential Zone and it therefore satisfies the clause.

  2. Clause 27: Development to which this division applies – the proposed development on the subject land is located within R2 Low Density Residential for the purposes of a boarding house and therefore satisfied this clause.

  3. Clause 29: Standards that cannot be used to refuse consent – the proposed development is on land within the R2 Low Density Residential zone on which residential flats are not permitted and the land does not contain a heritage item or an interim heritage order, and is not on the State Heritage Register, therefore the floor space ratio    permitted under this clause is the maximum FSR under the Sutherland Shire Local Environment Plan 2015 (SSLEP2015), which is 0.55:1. The proposed FSR is 0.50:0 and therefore satisfies this clause.

  4. Clause 30 – Standards for boarding houses – The Statement of   Environmental Effects prepared by Morphology Design    Associates dated November 2018 provides an assessment of the proposed development against this clause. The consent authority has   considered this assessment and the parties are satisfied that the proposed development, as amended, satisfies this clause.

  5. Clause 30A: Character of the Local Area – The parties’ town planning experts have joint conferenced, and the Town Planning Joint Expert Report filed on 14 April 2021, and prepared by Mr    Jeff Mead for the Applicant, and Ms Lauren Franks, for the Council, provides a detailed assessment which concludes that the proposed development, as amended, is consistent with the   character of the local area. I noted on the site view that the area is undergoing urban renewal, notwithstanding that there remains pockets of pre-and post-World War II housing. Therefore this clause is satisfied.

  6. Clause 30AA: Boarding houses in Zone R2 Low Density Residential – the amendment to the ARHSEPP was gazetted on 28 February 2019, limiting the size of a boarding house development with the R2 Zone to 12 boarding rooms. However,   the proposed development falls under the savings provisions    pursuant to cl 54C of the ARHSEPP. Therefore 13 boarding rooms within the Zoned R2 Low Density Residential is endorsed by the parties and is permissible.

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

  1. The development application (as amended) is supported by BASIX Certificate No. 1138862M_03 issued by AENEC and dated 20 April 2021 (Basix Certificate). This certificate confirms that the project passes the BASIX requirements.

  2. The BASIX Certificate satisfied the requirement in cl 2A of Part 1, Schedule 1 to the EPA Regulations.

  1. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)

  1. Consideration has been given to cl 87 – impact of rail noise or vibration on non-rail development –

(1)  This clause applies to development for any of the following purposes that is on land in or adjacent to a rail corridor and that the consent authority considers is likely to be adversely affected by rail noise or vibration—

(a)  residential accommodation,

(b)  a place of public worship,

(c)  a hospital,

(d)  an educational establishment or centre-based child care facility.

(2)  Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette.

(3)  If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded—

(a)  in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am,

(b)  anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

  1. The development application included a Rail Noise and Vibration Assessment report prepared by Day Design Pty Ltd dated 24 October 2018   which assessed the potential impacts of the nearby railway lines on the amenity of the future residents. The report concludes that the noise and vibration levels from passing trains will be within the acceptable limits as set out above. Therefore, no noise controls are required to reduce the external noise or vibration levels to acceptable internal levels. Therefore this clause is satisfied.   

  1. State Environmental Planning Policy No 55–Remediation of Land (SEPP 55). Under cl 7(1)(a) of SEPP 55 consideration has been given to whether the land is contaminated. The subject site has been used for residential purposes for an extended time and the proposed development retains the residential use. It is considered the site poses no risk of contamination, and the DA does not require further consideration under cl 7(1)(b) of SEPP 55.   

  2. SSLEP2015 –

  1. Land Use Table – the land is zoned R2 Low Density Residential zone.   

  2. The proposed development, as amended, is permissible with consent in the R2 Low Density Residential Zone.

  3. Clause 2.3(2) indicates that regard must be had to the zone objectives. The relevant zone objective in the R2 zone is: “(a) To provide for the housing needs of the community within a low density residential environment.” The parties agree that the proposed development is compatible with the zone objectives by providing for the housing needs of the community within the zone.

  4. Clause 4.3 – Height of Buildings. The height of the proposed development is 6.73m and below the maximum height limit of 8.5m and the proposed development is therefore compliant.

  5. Clause 4.4 – Floor Space Ratio (FSR). The maximum permissible FSR for the site is 0.55:1. The floor space ratio for the proposal, as amended, is 0.50:1 and is therefore compliant.

  6. Clause 6.4 Stormwater Management. The DA as amended is supported by Stormwater Management Plans. The Council is satisfied with the Stormwater Management Plans.

  7. Clause 6.14 Landscaped areas in certain zones – The minimum percentage of landscape area for the site under this clause is 35%. The landscape area of the DA as amended is 36.2% and is therefore compliant.

  8. Clause 6.16 Urban Design – general & Clause 6.17 Urban Design – residential. The proposal is supported by documentation and specialist reports, including the Joint Report of the Town Planning Experts dated 14 April 2021. The reports have taken into account the requirements of the objectives of these clauses and the Council considered the matters as satisfactory, and imposed specific conditions of consent where relevant.

  1. Public Notification. The development application, as amended pursuant to the Court granting leave on 26 November 2020, was notified on 30 November 2020.

  1. Prior to the site view on 20 April 2021 I perused all the objectors’ submissions. Two objectors appeared on 20 April 2021: Mrs Robyn Galvin of 15 Best Street, and Mr Brian Brennan of 5 Wannyl Road, Kirrawee. I attended 15 Best Street in the company of Mrs Galvin and heard her objections. I then attended 5 Wannyl Road in the company of Mr Brennan and heard his objections. The objectors’ submissions, both written and oral, have been considered by the Council, and by the town planning experts in their Town Planning Experts Joint Report dated 14 April 2020. I set out below the detailed discussions from [26] to [43] of that Report:

  1. Where matters raised by objectors have not been specifically addressed within contentions 1-5 and 7, a response has been provided below (noting that these submissions are a matter for evidence by the objectors).

  2. A minor increase in traffic is acknowledged by virtue of the boarding house containing seven car spaces as opposed to the existing dwelling house accommodating two cars. However, Council’s Development Engineer is satisfied the proposal will not result in an unacceptable amount of traffic generation.

  3. With regards to safety, all vehicles will enter and exist the site in a forward direction. As vehicles will not reverse onto Best Crescent, this will result in improved sightlines and safety when compared to development for a dwelling house or dual occupancy which relies on cars either reversing onto or out of the site.

  4. A total of 7 parking spaces are provided on the site. The number of parking spaces complied with the requirements of the ARHSEPP. It is unreasonable to require the Applicant to provide additional parking beyond these controls.

  5. The proposal complies with Clause 4.3 of the SSLEP 2015 which permits a maximum building height of 8.5m. To require the Applicant to lower their building further when it complies with this development standard is unreasonable and unnecessary.

  6. With regards to floor space ratio (FSR), a maximum FSR of 0.55:1 applies to the site pursuant to clause 4.4 of SSLEP2015. The proposal has been amended to achieve a FSR of 0.5:1.

  7. With regards to the landscaped area, a minimum 35% of the site is to be deep soil landscaping pursuant to clause 6.14 of SSLEP 2015. The proposal has been amended to show an increased provision of landscaping, achieving a landscaped area of” 36.2%. (corrected from the former 35%)

  8. In response to concerns relating to possible reduction in property prices, this is not a matter for consideration under s 4.15 of the EPA Act and does not constitute a reasonable ground for refusal. This position has been reinforced by planning and developments decisions in the Land and Environment Court.

  9. The Plan of Management specifies that verification checks will occur upon receipt of an application from a prospective lodger. A screening process that involves reference checks, criminal record review, employment history and review of the national tenancy database will be undertaken.

  10. With regards to waste collection and storage, Council’s Waste Officer is supportive of the size of the bin storage room and does not require provision of a separate bulky waste storage area.

  11. A condition of consent is imposed requiring the development to comply with the Regulatory regime of the Boarding House Act 2012, relevant regulations and the Building Code of Australia. Irrespective of a condition of consent, the proposal is bind (sic) to operate in accordance with the Boarding House Act 2012, relevant regulations and be constructed in accordance with the BCA. There is no evidence to confirm that the boarding house will operate unlawfully.

  12. With regards to the concern that the development is a profit orientated development, the SEPP (ARH) 2009 does not limit development for the purposes of a boarding house to be undertaken by social housing providers.

  13. Through submission of additional shadow diagrams, it has been confirmed that the proposal will not impede the dwelling to the south’s (i.e. No. 15 Best Crescent) ability to achieve solar access to a minimum of 10m2 private open space and a portion of any north facing living room window, each for a period of 3 hours during mid-winter.

  14. The proposed development has a side setback to No. 15 Best Crescent of 4.6m at the ground floor and 3.85m at the first floor. It is acknowledged that were the subject site to be redeveloped as a dual occupancy or dwelling house, the built form would be permitted to have setbacks with No. 15 Best Crescent of 0.90m at the ground level and 1.5m at the first floor level which would increase visual bulk and overshadowing to this adjoining property particularly given No. 15 Best Crescent is situated to the south.

  15. Council’s Development Engineer is satisfied that through imposition of conditions of consent, the amended stormwater design will not cause flooding to surrounding properties.

  16. With regards to lightspill through the timber boundary fence shared with No. 5 Wannyl Road where its rear boundary fence shared with the subject site. While limited vegetation exists on No. 5 Wannyl Road, a 2m wide garden bed will alighn the shared boundary. Council’s Landscape Architect has confirmed that the plant species along the rear boundary will have a dense form, restricting light spill from headlights, in addition to the boundary fence.

  17. A boarding house is considered a form of low-cost rental accommodation for a wide range of boarders including singles, retirees, students and young couples. Division 3 of the ARHSEPP, to which this proposal relates, does not contain any minimum or maximum operational period as affordable housing.

  18. Preparation of an Environmental Impact Assessment is not required for the development.”

    1. Further, at the onsite view at the commencement of the s 34 Conciliation Conference, the Applicant agreed to replace the boundary fence at 5 Wannyl Road to assist further in preventing lightspill. Consequent upon that decision, condition 2 ii) of the draft conditions of consent was amended to reflect the replacement of the fence.

    2. The BASIX Certificate No. 11388862 dated 20 April 2021 was updated to reflect the version of the plans referred to in Annexure ‘A’ hereto.   

    3. The parties explained how the jurisdictional prerequisites have been satisfied as set    out in [14]-[18] above.

    4. 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:

    1. The appeal was made pursuant to s 8.7 of the EPA Act, and it was made within the time provisions required pursuant to s 8.10 of the EPA Act.

    2. The original development application sought approval for an 18 bedroom boarding house. Subsequently the DA has been modified to reduce the number of bedrooms to 13. The DA was lodged prior to the ARHSEPP 2019 amendment coming into effect. The maximum number of bedrooms in a boarding house pursuant to ARHSEPP is 18 since the amendment to ARHSEPP on 28 February 2019, but note that this development application was lodged prior to the amendment to ARHSEPP being gazetted, and   therefore the DA is assessed under the savings and transitional provisions.   The parties plus the town planning experts consider 13 bedrooms in this DA is reasonable. I accept that position.

    3. The DA is otherwise permissible pursuant to the ARHSEPP as set out above.

    4. The Land is zoned R2 Low Density Residential Zone and boarding houses are permissible with consent.   

    5. The BASIX Certificate dated 20 April 2021 and Certificate No. 1138862M_03 has been updated to reflect the plans referred to in Annexure ‘A’ hereto. The BASIX Certificate satisfied the requirement in cl 2A of Part 1 of Schedule 1 to the EPA Regulations.

    6. The DA meets the criteria set by SEPP (Infrastructure) in relation to the impact of noise emanating from use of the rail line.   

    7. Consideration was given to the application of SEPP 55, and as the Land has been used for residential use for many years, it was considered that the Land does not pose a risk of contamination.

    8. The DA complies with the requirements of SSLEP2015 as set out above. There is no breach of a development standard.

    9. Merit issues have been dealt with under the amended plans or are dealt with in the conditions of consent.   

    1. 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.

    2. The Court orders:

    1. The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in Condition 1 of Annexure ‘A’.

    2. The appeal is upheld.

    3. Development Application DA18/1300 for demolition of existing structures and construction of 2 storey boarding house development containing 13 rooms, communal living room and at grade car parking spaces for 7 cars on land legally described as Lot 20 in Deposited Plan 21200 known as 17 Best Crescent, Kirrawee NSW is granted subject to the conditions set out in Annexure ‘A’ hereto.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (290500, pdf)

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Decision last updated: 21 May 2021

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