Prasino P/L v Ashfield Council

[2012] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:

Prasino P/L v Ashfield Council [2012] NSWLEC 1257

Hearing dates:

7 September 2012

Decision date:

11 September 2012

Jurisdiction:

Class 1

Before:

O'Neill C

Decision:

1. By consent, the appeal is upheld.

2. Modification Application No. 2010.018.3 which seeks to modify Development Consent No 10.2010.018 by deleting condition 7 of that consent is approved.

Catchwords:

MODIFICATION APPLICATION: consent orders, boarding house.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Prasino P/L and John Galatis (Applicant)
Ashfield Council (Respondent)

Representation:

Ms Sandra Duggan SC (Applicant)
Mr Stephen Patterson (Solicitor) (Respondent)
Solicitors
Conomos Legal (Applicant)
Wiltshire, Webb, Staunton, Beattie Lawyers (Respondent)

File Number(s):

10832 of 2012

Judgment

1. COMMISSIONER: This appeal comes before the Court for consent orders in relation to Modification Application no. 10.2012.018.3 (the application) for the deletion of a condition of consent applied to the original consent, by Ashfield Council, which granted approval to a three storey building for use as a boarding house at 59 Liverpool Road, Liverpool (the site).

1. The applicant seeks the deletion of condition A(7), as follows:

Condition 7 Affordable Housing - 10 years

The proposal must be used for Affordable Housing for 10 years compliant with the following requirements-

(a) For 10 years from the date of the issue of the occupation certificate

(i) At least 50 per cent of the accommodation to which the development relates will be used for the purpose of affordable housing, and

(ii) all the accommodation that is used for affordable housing will be managed by a community housing provider, and

(b) A restriction will be registered before the date of the issue of the occupation certificate against the title of the property on which development is to be carried out in accordance with Section 88E of the Conveyancing Act 1919 that will ensure that for 10 years from the date of the issue of the occupation certificate

(i) At least 50 per cent of the accommodation to which the development relates will be used for the purposes of affordable housing, and

(ii) All the accommodation that is used for affordable housing will be managed by community housing provider

(iii) Nb. The definition of Affordable Housing in State Environmental Planning Policy (Affordable Rental Housing) 2009 is to be adopted for the purposes of this condition

1. Prior to the hearing, the parties agreed to enter into consent orders to delete condition A(7).

1. In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides:

Application for final orders by consent of parties

35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval.

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii)the date of the hearing by the Court to consider making the proposed consent orders; and

(iii)the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.

1. There were no resident objectors.

1. Ms Duggan submits that condition A(7) is not referrable to the power conferred by section 80A of the Environmental Planning and Assessment Act 1979 (EPA Act) and that the subject of condition A(7) is not a planning matter to which condition 79C of EPA Act relates.

1. The environmental planning instrument pursuant to which the use of the development was authorised, State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH), makes provision for the granting of approval for types of affordable housing and permits the placement of conditions on some types of affordable housing. Ms Duggan submits that condition A(7) purports to rely on clause 17 of SEPP ARH and clause 17 specifically does not apply to boarding housing.

1. Ms Duggan further submits that the use of the development as a boarding house remains by virtue of the other conditions on the development consent.

Conclusion

1. In considering the deletion of condition A(7), I am satisfied that it is 'lawful and appropriate' to grant the consent.

Orders

1. The orders of the Court are:

1.   By consent, the appeal is upheld.

2.   Modification Application No. 2010.018.3 which seeks to modify Development Consent No 10.2010.018 by deleting condition 7 of that consent is approved.

The Court notes that the parties do not intend to seek any orders as to costs.

____________

Susan O'Neill

Commissioner of the Court

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Decision last updated: 11 September 2012