Regal Benelong Pty Ltd v North Sydney Council

[2024] NSWLEC 1042

Land and Environment Court

New South Wales

Medium Neutral Citation:

Regal Benelong Pty Ltd v North Sydney Council [2024] NSWLEC 1042

Hearing dates:

Conciliation conference on 2 February 2024

Date of orders:

09 February 2024

Decision date:

09 February 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development application No DA323/21 for demolition of the existing dwelling and construction of a three-storey boarding house at 124 Benelong Road, Cremorne, is determined by the grant of consent, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: boarding house developing in R4 High Density Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, ss 34, 39

North Sydney Local Environmental Plan 2013, cll 4.3, 6.10

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

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Regal Benelong Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/73980

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by North Sydney Council of development application No DA323/21, seeking consent for demolition of dwelling and construction of a three-storey boarding house development containing 14 boarding rooms, one car parking space and 3 motorcycle parking spaces at 124 Benelong Road, Cremorne.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 2 February 2024.

3. However, prior to the conciliation conference the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent.

5. I note here that a signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted with the Court on 12 December 2023. However, on the day prior, the Court granted the request of the parties to list the matter for conciliation for 2 February 2024 so as to receive further oral submissions from residents in the vicinity of the site.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [26], as follows:

8. The site is located in the R4 High Density Residential zone according to the North Sydney Local Environmental Plan 2013 (NSLEP), in which boarding houses are permitted with consent, where consistent with the objective for development in the R4 zone.

9. Those objectives are as follows:

•  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.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To ensure that a reasonably high level of residential amenity is achieved and maintained.

10. The development application was lodged 14 October 2021 on behalf of the owner of the site, the Applicant, Regal Benelong Pty Ltd. The development application was notified to residents and advertised between 29 October 2021 and 12 November 2021 in accordance with the Respondent’s Community Engagement Protocol.

11. On 8 November 2023, the Court, exercising the powers of North Sydney Council as the relevant consent authority, under s 39 of the LEC Act, granted leave to the Applicant to rely upon amended plans that were subsequently notified to residents, in response to which objections were received.

12. The proposed development complies with the height standard of 12m that applies to the site by virtue of cl 4.3(2) of the NSLEP. There is no floor space ratio standard that applies to the site.

13. I have considered those matters required to be considered at cl 6.10(3) of the NSLEP in respect of earthworks. The proposed development requires earthworks on the site in the form of cut and fill. No basement excavation is proposed. A Preliminary Geotechnical Assessment prepared by GeoFirst Pty Ltd dated 22 September 2021 concludes the site is suitable for the proposed development. Furthermore, the agreed conditions of consent require the preparation of a further geotechnical/Civil Engineering Report (Condition C4). On this basis, and having regard to the Stormwater Concept Design documentation prepared by JCO Consultants dated 16 September 2021, I consider the matters at cl 6.10(3) of the NSLEP to be adequately addressed.

State Environmental Planning Policy (Affordable Rental Housing) 2009

14. As the DA was lodged in October 2021, the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) apply.

15. Clause 29 of the ARH SEPP contains provisions that cannot be used to refuse consent.

16. Clause 29(1) sets standards for the FSR permitted on the site, where an existing FSR standard applies. As no such FSR standard applies to the site, the provision cannot be used to set a standard for the site.

17. In respect of those matters are cl 29(2):

1. The proposal is within the building height standard permitted on the site.

2. The landscape treatment of the front setback area is agreed by the parties to be compatible with the streetscape in which the site is located.

3. On the basis of the shadow study plans prepared by JKM Architects, I accept that the communal living rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid winter through the north eastern window.

4. Private open space of at least 20m² is provided to the north east of the site, with a dimension of not less than 3m, and accommodation for a boarding house manager is provided consistent with subcl 29(2)(d)(ii).

5. Car parking is provided on site for one vehicle, and three motor cycles. As such, the proposal does not achieve the ‘must not refuse’ threshold. However, the parties agree that parking is sufficient because the requirements of the North Sydney Development Control Plan 2013 are met, when the proximity to public transport is considered.

6. The boarding rooms meet the requirements for size set out in cl 29(2)(f), and comprise a private kitchen and bathroom as is provided for in cl 29(3).

18. The grant of consent is precluded by cl 30 of the ARH SEPP unless those relevant standards at subcl(1) are achieved. For the reasons that follow, I am so satisfied that:

1. The proposal provides a communal living room.

2. No boarding room is greater than 25m² in size.

3. The Plan of Management, prepared by ABC Planning dated August 2023, identifies the maximum number of people permitted to occupy a boarding room, consistent with cl 30(1)(c) of the ARH SEPP.

4. As each boarding room comprises private kitchen and bathroom facilities, the standard at subcl(1)(d) is achieved.

5. A boarding room identified for use by a boarding house manager is proposed, consistent with subcl(1)(e).

6. The proposed development provides parking for 3 motorcycles and 6 bicycle racks, consistent with subcl (1)(h).

19. Clause 30A of the ARH SEPP requires the design of the development to be compatible with the character of the local area. On the basis of the assessment contained in the Statement of Environmental Effects prepared by ABC Planning dated October 2021, I accept the proposal is compatible with the character of the R4 zone located along Gerard Street.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. On the basis of the historical assessment of the site that appears on p 21 of the Statement of Environmental Effects, supported by aerial photography from 1943, I accept the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

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

21. The application is accompanied by a BASIX certificate (Certificate No 1241572M) prepared by Taylor Smith Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

22. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

23. 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.

24. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

25. The Court notes that:

1. The parties agree that the order of the Court dated 8 November 2023 as to costs thrown away under s 8.15(3) of the EPA Act is agreed in the sum of $18,000.

2. The Applicant filed with the Court the plans and documents for which leave was granted on 8 November 2023, and filed updated conditions of consent on 2 February 2024.

Orders

26. The Court orders that:

1. The appeal is upheld.

2. Development application No DA323/21 for demolition of the existing dwelling and construction of a three-storey boarding house at 124 Benelong Road, Cremorne, is determined by the grant of consent, subject to conditions in Annexure A.

T Horton

Commissioner of the Court

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Annexure A

Decision last updated: 09 February 2024