Polvere v Muswellbrook Shire Council

[2021] NSWLEC 1550

Land and Environment Court

New South Wales

Medium Neutral Citation:

Polvere v Muswellbrook Shire Council [2021] NSWLEC 1550

Hearing dates:

Conciliation Conference on 27 July 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 2021/26 for a change of use of an existing thirty- six (36) bed aged care facility to a forty-four (44) room boarding house including associated alterations and additions together with the change of use of the existing fourteen (14) independent seniors living units to dual occupancy dwellings at 59 Tindale Street, Muswellbrook (Lot 2 DP 1070178) subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – change of use – boarding house and dual occupancy residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, s 34

Muswellbrook Local Environmental Plan 2009, cl 7.6

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 30

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Tony Polvere (Applicant)
Muswellbrook Shire Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Brothers (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Moray and Agnew (Respondent)

File Number(s):

2021/128041

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) by Mr Tony Polvere (“the Applicant”) against the Respondent’s deemed refusal of development application 2021-26. The development application seeks consent for a change in use of an existing thirty-six (36) bed aged care facility to a forty-four (44) room boarding house including associated alterations and additions together with the change in use of the existing fourteen (14) independent seniors living units to dual occupancy dwellings. The development is proposed at 59 Tindale Street, Muswellbrook (Lot 2 in Deposited Plan 1070178).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for conciliation on 27 July 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (“LEC Act”). Following 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 was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 August 2021.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), consent has been provided by the owners of the land the subject of the Development Application.

2. Pursuant to cl 7(1) of State Environmental Planning Policy 55— Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The statement of environmental impacts (SEE) submitted with the application notes that the development involves works to a residential property with a long history of residential use, that there are no indicates on site of unauthorised fill. The SEE concludes that the risk of contamination is low and that the site is suitable or can be made suitable for the intended use. The Court, as consent authority can be similarly satisfied.

3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The BASIX certificate is referrable to the amended development application.

4. The development application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEEP ARH). The policy applies as the land is zoned R1 General Residential: cl 26 of SEPP ARH.

5. Clause 30 of SEPP ARH sets out the standards for boarding houses, which the proposed development complies with as follows:

1. At least one communal living room is provided as required by cl 30(1)(a) of SEPP ARH.

2. No boarding room has a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres as required by cl 30(1)(b) of SEPP ARH.

3. No boarding room is proposed to be occupied by more than 2 adult lodgers as required by cl 30(1)(c) of SEPP ARH, which is also confirmed by condition 123.

4. The boarding house has the capacity to accommodate more than 20 lodgers, and an onsite dwelling for a boarding house manager is proposed as required by cl 30(1)(e) of SEPP ARH.

5. The land is primarily zoned for residential purposes and accordingly the requirements of cl 30(1)(g) of SEPP ARH do not apply.

6. The proposed development provides 9 motorcycle spaces and 9 bicycle spaces, meeting the requirement at cl 30(1)(h) of SEPP ARH.

7. In determining the development application, I have given consideration as to whether the design of the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH. The parties agree that, as a result of amendments to the plans, the design is compatible with the local character. I accept their agreement.

6. Pursuant to Muswellbrook Local Environmental Plan 2009 (LEP 2009) the Site is zoned R1 – General Residential. I accept the agreed position of the parties that the development is permissible in the zone. In determining the development application, I have had regard to the objectives of the R1 – General Residential zone.

7. The proposed development is compliant with the development standards for height (8.5m) and floor space ratio (1.0:1) in LEP 2009.

8. The proposed development includes minor earthworks for the purpose of cl 7.6(3) of LEP 2009. In granting consent I have considered the matters in sub cl (3) and have formed a view that they do not warrant the refusal of the development application.

9. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The Court notes:

1. That Muswellbrook Shire Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for development consent (2021/26).

2. That Muswellbrook Shire Council has uploaded the amended application on the NSW planning portal on 10 September 2021.

3. That the applicant has filed the amended application with the Court.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 2021/26 for a change of use of an existing thirty- six (36) bed aged care facility to a forty-four (44) room boarding house including associated alterations and additions together with the change of use of the existing fourteen (14) independent seniors living units to dual occupancy dwellings at 59 Tindale Street, Muswellbrook (Lot 2 DP 1070178) subject to the conditions of consent in Annexure ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (300365, pdf)

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Decision last updated: 22 September 2021