Saade v Strathfield Municipal Council

[2021] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:

Saade v Strathfield Municipal Council [2021] NSWLEC 1206

Hearing dates:

Conciliation conference on 21 January 2021, 9 and 23 February 2021

Date of orders:

29 April 2021

Decision date:

29 April 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [14]

Catchwords:

DEVELOPMENT APPLICATION – boarding house – breach of LEP height standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Strathfield Local Environmental Plan 2012

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020)

Category:

Principal judgment

Parties:

Samir Saade (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/250687

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 DA2020/106 (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 923m² parcel of land identified as Lot 10 in DP 827 at 14 Marlborough Road, Homebush West (the site). The DA as submitted to the Council on 16 June 2020 sought consent for demolition of the existing dwelling and the construction of a five storey boarding house containing fifty-five (55) rooms, including one manager’s room, over two basement levels. The DA was exhibited between 29 June 2020 and 20 July 2020, with 19 submissions received during the exhibition period.

3. On 28 August 2020 the Applicant lodged this Class 1 Appeal with the Court. On 21 October 2020 the Court granted leave to the Applicant to amend the application in accordance with the Notice of Motion filed on 2 October 2020. The amended proposal was re-notified and re-advertised for a period of 21 days, ending on 16 November 2020, resulting in 11 submissions. On 18 November the Council filed its Statement of Facts and Contentions (SOFC).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 21 January 2021, 9 and 23 February 2021. The proceedings commenced with a site view attended by me and representatives of the parties. Due to the Court’s COVID-19 Pandemic Arrangements Policy (December 2020) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, oral submissions from objectors were taken by telephone, after the site view and prior to commencement of the conference.

5. Further amendments to the architectural plans, prepared by Urban Link Revision D dated 1 February 2021, (the final plans) were then made to address the matters raised in the SOFC, concerns raised by Council during the s34 conference and in the public submissions. The parties advised the Court that they had reached an agreement and provided to the Court a copy of that agreement along with draft conditions on 23 February 2021. On 24 February 2021 sets of the architectural, landscape and engineering (stormwater) plans, and a revised clause 4.6 variation request to the building height standard were filed with the Court. Further minor changes to the agreement and draft conditions were made in response to a query from the Court regarding decontamination measures. A final s34 agreement, including conditions of consent at Annexure A, was filed with the Court on 14 April 2021.

6. The main changes between the original plans filed with the Class 1 Application to the Court and the final plans the subject of the s34 agreement are:

1. From ground level and above the building has been split into two separate buildings and all floor plans amended to reorient some rooms and minimise the number of rooms facing the adjoining residential units to the north.

2. The outdoor communal open space and associated communal lounge previously located on Level 4 have been relocated to the ground level. A second, smaller outdoor communal open space and communal lounge have been introduced on the lower ground level at the rear of the site.

3. The number of boarding rooms (excluding manager’s room) has been reduced from 54 to 51, the gross floor area (GFA) has reduced from 1,792m² to 1,729m², the floor space ratio (FSR) has reduced from 1.94:1 to 1.87:1 and the number of parking spaces has reduced from 28 to 27.

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 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

8. The relevant jurisdictional matters have been identified by the parties. In relation to the Strathfield Local Environmental Plan 2012 (SLEP 2012) the relevant provisions are:

1. The development is for the purposes of the boarding house, which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone), and is consistent with the objectives of the R3 Zone. Demolition is permissible under cl 2.7 of the SLEP 2012.

2. The maximum height of the development, at 15.33m contravenes the 14.0m height of buildings development standard at cl 4.3 of the SLEP 2012.

3. The parties agree that the written request seeking a variation to the height standard, prepared pursuant to cl 4.6 of SLEP 2012 by Planning Ingenuity and dated 1 February 2021 is acceptable and should be upheld. For the reasons contained in the clause 4.6 variation request, I am satisfied that the applicant’s written request has demonstrated that compliance with the development standard is unnecessary or unreasonable in the circumstances of this case, and there are sufficient environmental planning grounds to justify contravening the development standard. The provisions of cl 4.6(3) of the SLEP 2012 are therefore satisfied.

4. I am also satisfied, for the reasons set out in the clause 4.6 variation request, that the written request has addressed how the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development in the R3 Zone in which the development is proposed to be carried out. The provisions of cl 4.6(4) of the SLEP 2012 are therefore satisfied.

5. The development has a FSR of 1.87:1 which does not contravene the FSR development standard at cl 4.4 of the SLEP 2012 of 1.45:1 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).

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

1. Two communal living rooms and outdoor communal spaces are provided.

2. No boarding room has a GFA of more than 25m²– excluding the areas identified by cl 30(1)(b).

3. No boarding room will be occupied by more than 2 lodgers as specified in the Plan of Management (POM).

4. Bathroom and kitchen facilities are provided in each room for the use of each lodger.

5. A manager’s room is provided.

6. At least one parking space for a bicycle and motorcycle, for every 5 boarding rooms is provided – 11 bicycle and 11 motorcycle spaces.

10. The development is also compatible with the character of the local area, as required by cl 30A of the SEPP ARH.

11. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular subcll 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. A Preliminary Site Investigation Report (by B Environ Group, dated November 2018), Detailed Site Investigation Report (by Foundation Earth Sciences, dated May 2020) and a Remediation Action Plan (RAP) prepared by Foundation Earth Sciences, dated September 2020 have been provided in accordance with SEPP 55. The site can be made suitable for the proposed development, subject to the remediation works being undertaken as recommended in the RAP referenced in Condition 1 of the conditions of consent.

12. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a BASIX Certificate number 1103539M _02 dated 15 February 2021 have been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent.

Disposal of proceedings in accordance with the parties’ decision

13. 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.

14. The Court orders:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Demolition plan	DA1002	D	1 February 2021	Urban Link
Basement 01	DA2001	D	1 February 2021	Urban Link
Lower ground	DA2002	D	1 February 2021	Urban Link
Ground floor plan	DA2003	D	1 February 2021	Urban Link
Level 01-typical	DA2004	D	1 February 2021	Urban Link
Level 02 – typical	DA2005	D	1 February 2021	Urban Link
Level 03 – typical	DA2006	D	1 February 2021	Urban Link
Level 04	DA2007	D	1 February 2021	Urban Link
Roof plan	DA 2008	D	1 February 2021	Urban Link
Elevations North/East	DA 3002	D	1 February 2021	Urban Link
Elevations Streetscape	DA 3003	D	1 February 2021	Urban Link
Sections	DA 4001	D	1 February 2021	Urban Link
Finishes Schedule	DA 6301	D	1 February 2021	Urban Link
Landscape plans
Cover Sheet	L/00	D	15 February 2021	ATC landscape architects and swimming pool designers
Proposed landscape plan – Ground floor	L/01	D	15 February 2021	ATC landscape architects and swimming pool designers
Proposed landscape plan – Ground floor	L/02	D	15 February 2021	ATC landscape architects and swimming pool designers
Stormwater plans
Lower ground floor and basement 01 drainage plan	D02	E	10 February 2021	United Consulting Engineers Pty Ltd
Ground floor drainage plan	D03	E	10 February 2021	United Consulting Engineers Pty Ltd
Drainage details	D04	E	10 February 2021	United Consulting Engineers Pty Ltd
Easement plan	D05	E	10 February 2021	United Consulting Engineers Pty Ltd
Reports
Acoustic report prepared by Day Design Pty Ltd dated 18 January 2021
Amended plan of management prepared by Urban Link dated 19 February 2021
BCA report prepared by Incode Solutions dated 16 February 2021
Access report prepared by Vista Access Architects dated February 2021
BASIX certificate no. 1103539M_02 dated 15 February 2021

2. The appeal is upheld.

3. Development Consent is granted to Development Application no. DA2020/106 for the demolition of existing dwelling and construction of a boarding house comprising fifty-one (51) rooms and a manager’s room at 14 Marlborough Road, Homebush West, subject to conditions contained in Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (339600, pdf)

Plan (696617, pdf)

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Decision last updated: 29 April 2021