Rod Zoby Group Pty Ltd trading as Zta Group Pty Ltd v Strathfield Municipal Council

[2021] NSWLEC 1688

Land and Environment Court

New South Wales

Medium Neutral Citation:

ROD ZOBY GROUP PTY LTD trading as ZTA Group Pty Ltd v Strathfield Municipal Council [2021] NSWLEC 1688

Hearing dates:

Conciliation conference on 5 October 2021

Date of orders:

11 November 2021

Decision date:

11 November 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of the date of these orders.

(2)   The Applicant’s amended written request under cl 4.6 of the Strathfield Local Environmental Plan 2011 (SLEP) prepared by Rod Logan dated 6 September 2021 seeking a variation of the development standard for height of buildings under cl 4.3 of the SLEP is upheld.

(3)   The appeal is upheld.

(4)   Development Consent is granted to Development Application 2020/125/1 for demolition of existing structures and construction of a seven storey mixed use building comprising one commercial unit, first floor office space and 34 boarding rooms above two levels of basement parking at 84 Park Road, Homebush subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – mixed use development including a boarding house –– cl 4.6 variation to height standard ­– conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.14

Land and Environment Court Act 1979, s 34

Strathfield Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, 6.4, 6.9

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A, 52

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

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

Deemed State Environmental Planning Policy – Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Environmental Planning and Assessment Regulation 2000, cl 55

Category:

Principal judgment

Parties:

Rod Zoby Group Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/120522

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Strathfield Municipal Council (Council) of Development Application No 2020/125 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 537.4m² parcel of land identified as Lot B in DP 958679 at 84 Park Road, Homebush (the Site). The Site is benefited by a Right of Carriageway across the rear of the adjoining land to the west at 56 Powell Street, that allows vehicular access to the Site from Powell Street.

3. The DA as submitted to the Council on 18 July 2020 sought consent for demolition of the existing structures and the construction of an eight storey mixed use development comprising one commercial premises suite (ground floor) and a boarding house containing 43 boarding rooms, including one manager’s room, with a basement level containing parking. Vehicular access is provided from Powell Street via the Right of Carriageway.

4. The DA, as illustrated in the architectural plans prepared by ZTA Group dated 30 January 2020 (Issue B plans), was notified and advertised for a period of 21 days commencing on 31 July 2020, resulting in the receipt of 21 submissions.

5. On 2 February 2021, the applicant amended the DA as illustrated in the architectural plans prepared by ZTA Group dated 22 December 2020 (Issue F plans), resulting in a reduction in the number of boarding rooms to 40 (including the manager’s room). On 4 March 2021 the amended DA was refused by the Strathfield Local Planning Panel (Planning Panel).

6. On 30 April 2021 the Applicant filed this Class 1 Appeal with the Court and on 30 June 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court arranged a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), that was held before me on 10 and 25 August 2021, and 8 and 20 September 2021 (the first s 34 conference). On 20 September 2021 I terminated the first s 34 conference under circumstances where the parties were unable to reach an agreement.

7. At the Directions Hearing on 27 September 2021 the Registrar, at the request of the parties, arranged a second conciliation conference pursuant to s 34 of the LEC Act for 5 October 2021.

8. Between the first and second s 34 conferences, the applicant made further amendments to the architectural plans and landscape plans, in order to address matters raised in the SOFC, and arising from discussions in the first s 34 conference. The final architectural and landscape plans and other documents that comprised the final amended application, including an amended BASIX certificate, an amended Waste Management Plan, Supplementary Traffic Statement and a Revised s 4.6 Report, were lodged, with the consent of Council, on the NSW planning portal on 21 and 30 September 2021.

9. On 1 October 2021 the parties advised the Court that they had signed an agreement pursuant to s 34(3) of the LEC Act and filed a copy of that agreement with the Court. On 1 October 2021 the parties also filed a copy of the various documents that comprised the final amended DA, as uploaded to the NSW planning portal on 21 and 30 September 2021, and referred to in the s 34 agreement.

10. At the second s 34 conciliation conference on 5 October 2021, the parties ran through the final amended DA documentation, the s 34 agreement and the basis upon which the terms of the agreement was a decision that the Court could have made in the proper exercise of its functions.

11. The main changes between the amended DA plans (the Issue F plans) that formed the basis of the DA refused by the Planning Panel, and the final amended plans prepared by ZTA Group dated 28 September 2021 (Issue I plans), the subject of the s 34 agreement, can be summarised as:

1. An additional level of basement parking has been provided. Both basement levels are setback from the Park Road boundary to allow for deep soil planting in the landscaped setback above. The car lift remains, but the car stackers are removed.

2. The ground floor layout has been revised, involving the removal of one car space, a small increase in the area of the commercial office suite and the introduction of soft landscaping, comprising deep soil planting, in the front setback.

3. The layout of Level 1 has been amended with an increased setback from Park Road (achieved by reducing the width of the balconies facing the street), replacement of the three boarding rooms facing Park Road with a new office suite, and providing a wider planter box on the northern side of the communal open space terrace at the rear.

4. The layout of Level 2 has been amended with an increased setback from Park Road achieved by reducing the width of the balconies to the boarding rooms facing the street.

5. The layout of Level 6 (the new topmost level) has been revised with the replacement of three boarding rooms at the rear with a communal living room and associated communal open space terrace.

6. The 8th storey (Level 7) that contained a common room and communal open space terraces, has been removed, reducing the building height from approximately 25.6m to 22.4m.

7. As a result of the above changes the number of boarding rooms has reduced from 40 to 34, and the total number of car parking spaces (for boarders) has reduced by 3 spaces, commensurate with the reduction in the number of boarding rooms.

12. 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 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

13. In relation to the Strathfield Local Environmental Plan 2012 (SLEP) the relevant provisions are:

1. The development is for the purposes of “commercial premises” and a “boarding house”, which are permissible with consent in the B4 Mixed Use Zone (B4 Zone), and the development is consistent with the objectives of the B4 Zone.

2. The maximum height of the development, as amended, is 22.4m, and therefore does not comply with the 22m height of buildings development standard at cl 4.3 of the SLEP, necessitating a written request to vary this development standard pursuant to cl 4.6 of the SLEP. This is addressed in paragraphs 14 to 16 of this judgment.

3. The development, as amended, has a floor space ratio (FSR) of less than the combined maximum FSR development standard at cl 4.4 of the SLEP of 2:1, plus the 0.5:1 ‘bonus’ provided for by cl 29(1)(c) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH).

4. Clauses 6.1 Acid Sulphate Soils, 6.2. Earthworks, 6.4 Essential services, and 6.9 Additional provisions for development in the Parramatta Road Corridor are also relevant considerations. The matters for consideration set out in these clauses have been addressed in the application and/or through conditions of consent.

14. The development does not comply with the maximum height of buildings development standard at cl 4.3 of the SLEP. The lift overrun exceeds the maximum building height of 22m by 400mm. Clause 4.6 of SLEP allows the Court, standing in the shoes of the consent authority, to grant consent to the DA notwithstanding the contravention of cl 4.3, subject to it being satisfied that the relevant preconditions in cl 4.6 have been met.

15. A revised written request to vary the cl 4.3 height standard has been prepared by Rod Logan Planning, dated 6 September 2021 (“Clause 4.6 Request”). I have reviewed the Clause 4.6 Request and am satisfied, for the reasons set out in that document, that:

1. it has adequately addressed the matters required to be demonstrated under subcl (3) of cl 4.6, and

2. the development will be in the public interest because it is consistent with the objectives of the particular standard, and the objectives for development within the zone in which the development is proposed to be carried out, as required pursuant to subcl (4) of cl 4.6.

16. The Court can grant consent without the concurrence of the Planning Secretary pursuant to s 8.14(3) of the EPA Act, but should take into account the matters in cl 4.6(5) of the SLEP. In this case the development is a local development with a minor non-compliance and adequately justified breach of the building height. In the circumstances of this case the contravention of cl 4.3 of the SLEP does not raise any matter of significance for state or regional planning and there is no public benefit in maintaining the standard.

17. The proposed development includes a Boarding House under Division 3 of Part 2 of the SEPP ARH. Clauses 29 and 30 set out a number of development standards that apply to the DA.

18. Clause 29 refers to the standards that cannot be used to refuse consent. The development complies with each of those standards for:

1. floor space ratio;

2. landscape area;

3. solar access to communal room;

4. compliant private open space and for lodgers and on site boarding house manager

5. parking; and

6. accommodation size.

19. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. The development complies with the relevant standards, and specifically:

1. at least one communal living room is provided (two are provided);

2. the gross floor area of each boarding room does not exceed 25 square metres;

3. the boarding rooms will not be occupied by more than 2 adult lodgers;

4. adequate bathroom and kitchen facilities are provided for lodgers;

5. a boarding room is provided for a boarding house manager; and

6. bicycle and motorbike parking is provided at the nominated rates.

20. The parties are satisfied the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH, and there is no proposed subdivision of the boarding house in accordance with cl 52 of the SEPP ARH.

21. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular subcll 7(1) and (2), apply to the land and require consideration of any contamination and associated remediation. A Stage 1 Preliminary Site Investigation (dated 9 June 2020) was filed with the Class 1 Application. It concluded that the site is suitable for the proposed use, with minimal access to soils. Condition 30 of the consent requires a detailed site investigation and, if then found necessary, a remedial action plan to be undertaken prior to the issue of a construction certificate.

22. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a BASIX Certificate Number 1238477M dated 8 September 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in Conditions 1 and 17 of the consent.

23. The proposed development, whilst located within an area identified under the Deemed State Environmental Planning Policy – Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, is not located within the Foreshores and Waterways Area Map, Zoning Map, Critical Habitat Area Map, Heritage Map, Strategic Foreshore Sites Map or Wetlands Protection Area Map.

Disposal of proceedings in accordance with the parties’ decision

24. 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’ agreement.

25. The Court notes:

1. That Strathfield Municipal Council, as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application 2020/125/1.

2. That the amended application set out below was lodged on the NSW planning portal on 21 and 30 September 2021.

3. That the Applicant subsequently filed the amended application with the Court on 1 October 2021.

4. By consent, the development application is amended per the following documentation:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Cover Page	A000	I	28/09/2021	ZTA Group
Calculation	A100	I	28/09/2021	ZTA Group
Site Plan & Site Analysis	A101	I	28/09/2021	ZTA Group
Demolition Plan	A103	I	28/09/2021	ZTA Group
Construction Management Plan	A104	I	28/09/2021	ZTA Group
General Arrangement – Basement (02) Basement 01	A200	I	28/09/2021	ZTA Group
General Arrangement – Ground Floor Plan	A201	I	28/09/2021	ZTA Group
General Arrangement – Level 1_With COS; Level 2	A202	I	28/09/2021	ZTA Group
General Arrangement – Level 3; Level 4	A203	I	28/09/2021	ZTA Group
General Arrangement – Level 5; Level 6	A204	I	28/09/2021	ZTA Group
General Arrangement – Roof_Lift Ove rRun	A205	I	28/09/2021	ZTA Group
West Elevation; East Elevation	A300	I	28/09/2021	ZTA Group
North Elevation	A301	I	28/09/2021	ZTA Group
South Elevation	A302	I	28/09/2021	ZTA Group
Front Streetscape	A303	I	28/09/2021	ZTA Group
Section AA	A400	I	28/09/2021	ZTA Group
Section BB; Section CC	A401	I	28/09/2021	ZTA Group
3D Height Plane	A500	I	28/09/2021	ZTA Group
FSR Calculation	A501	I	28/09/2021	ZTA Group
Shadow Diagram_1	A502	I	28/09/2021	ZTA Group
Shadow Diagram_2	A503	I	28/09/2021	ZTA Group
Schedule for Finishes_1	A601	I	28/09/2021	ZTA Group
Schedule for Finishes_2	A602	I	28/09/2021	ZTA Group
Adaptable Room Types	A603	I	28/09/2021	ZTA Group
Notification Plan	A700	I	28/09/2021	ZTA Group
Neighbour – Site Plan	A800	I	28/09/2021	ZTA Group
Neighbour – Basement	A801	I	28/09/2021	ZTA Group
Neighbour – Ground Floor Plan	A802	I	28/09/2021	ZTA Group
Neighbour – Level 1	A803	I	28/09/2021	ZTA Group
Neighbour – Level 2	A804	I	28/09/2021	ZTA Group
Neighbour – Level 3	A805	I	28/09/2021	ZTA Group
Neighbour – Level 4	A806	I	28/09/2021	ZTA Group
Neighbour – Level 5	A807	I	28/09/2021	ZTA Group
Neighbour- Level_6_With COS	A808	I	28/09/2021	ZTA Group
General Arrangement – Roof_Lift Over Run	A809	I	28/09/2021	ZTA Group
Neighbour – West Elevation	A810	I	28/09/2021	ZTA Group
Neighbour – ADG Compliance	A811	I	28/09/2021	ZTA Group
Landscape Plans
Landscape Plan	21-4499-LO1	A	17/08/2021	Zenith
Landscape Plan	21-4499-LO2	A	17/08/2021	Zenith
Landscape Plan	21-4499-LO3	A	17/08/2021	Zenith
Reports
Amended Waste Management Report prepared by ZTA dated 7 September 2021
Supplementary Traffic Statement prepared by Craig Hazell Traffic Solutions dated 19 August 2021
BASIX Certificate dated 8 September 2021
Revised 4.6 Report prepared by Rod Logan Planning dated 6 September 2021

26. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of the date of these orders.

2. The Applicant’s amended written request under cl 4.6 of the Strathfield Local Environmental Plan 2011 (SLEP) prepared by Rod Logan dated 6 September 2021 seeking a variation of the development standard for height of buildings under cl 4.3 of the SLEP is upheld.

3. The appeal is upheld.

4. Development Consent is granted to Development Application 2020/125/1 for demolition of existing structures and construction of a seven storey mixed use building comprising one commercial unit, first floor office space and 34 boarding rooms above two levels of basement parking at 84 Park Road, Homebush subject to conditions contained in Annexure ‘A’.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (351596, pdf)

Plans (1267436, pdf)

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Decision last updated: 11 November 2021