Salem v Georges River Council

[2022] NSWLEC 1408

Land and Environment Court

New South Wales

Medium Neutral Citation:

Salem v Georges River Council [2022] NSWLEC 1408

Hearing dates:

Conciliation conference on 2 and 20 June 2022 and 21 July 2022

Date of orders:

3 August 2022

Decision date:

03 August 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA2021/0295 for demolition of existing structures, tree removal and construction of a 6-storey mixed use development comprising a ground floor commercial tenancy, a 40 room Boarding House including a communal room, managers room and associated amenities above two levels of basement car parking subject to conditions contained in Annexure ‘A’.

(3) The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – boarding house - conciliation conference – agreement between the parties - orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Georges River Local Environmental Plan 2021, cl 1.8A

Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment 1991

Interpretation Act 1987, s 30A

Kogarah Local Environmental Plan 2012, cll 4.3, 5.21, 6.1, 6.2, 6.5,

Land and Environment Court Act 1979, s 34State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29, 30

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 11.7

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

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

State Environmental Planning Policy (Transport and infrastructure) 2021, s 2.119, 2.121

State Environmental Planning Policy (Housing) 2021, s 7A

Category:

Principal judgment

Parties:

Mamdouh Salem (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/71021

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of Development Application DA2021/0295 seeking consent for the demolition of existing structures and the erection of a 6 storey mixed use development comprising of 1 commercial tenancy and a boarding house comprising 44 rooms, manager’s room, and basement car parking (the Proposed Development) on lot 1, DP 350244, known as 55 Park Road, Carlton (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 and 20 June 2022 and 21 July 2022. I presided over the conciliation conference.

3. The Applicant provided amended documents proposing the following changes:

1. reduction of rooms from 44 to 40;

2. increased setback of levels 2-6 from frontage to Park Rd;

3. reduction in proposed GFA from 1,710m² to 1,497m²; and

4. reorientation of visual bulk on level 6 towards the rear of the site.

4. Upon review and discussion of the amended documentation, the parties were able to reach an ‘in-principle’ agreement, subject to further revisions from the Applicant. Accordingly, the s 34 conference was adjourned in order to allow the Applicant to prepare further amended documentation.

5. The parties have now reached an agreement as to the resolution of those contentions which has resulted in the following amendments to the proposed development (Amended Application):

1. overall revision of ground floor internal layout, including:

1. reconfiguration of resident access from lobby area;

2. expansion of commercial space area and waste room capacity; and

3. addition of corridor running through the centre of the building to facilitate access to communal open space at the rear.

2. conversion of the access path along the north-western boundary to private open space areas for units G03-G06;

3. revision to treatment and material schedule for the north, east, and western elevations along the upper levels; and

4. overall increase to landscaped area and deep soil planting.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP).

9. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement which I have considered, and I include part of that explanation in my judgment below.

10. Owner’s consent has been given to the Applicant for lodgement of the Development Application, and evidence of this is found in the Development Application form filed with the Class 1 Application.

11. On 8 October 2021, the Kogarah Local Environmental Plan 2012 (KLEP) was repealed and superseded by the Georges River Local Environmental Plan 2021 (GRLEP). Given that the Development Application was lodged prior to the commencement of the GRLEP, the KLEP remains the applicable planning instrument pursuant to the savings provision under cl 1.8A of the GRLEP.

12. The site is zoned B2 – Local Centre under the KLEP and the proposed use ‘boarding houses’ is permissible within the B2 Zone. The parties agree that the Proposed Development is consistent with the objectives for development within the R2 Zone.

13. The Development Application seeks consent for the demolition of existing structures on site and the Applicant has provided a waste management plan for construction in its Amended Application, filed 20 July 2022 outlining the process of demolition and management of refuse materials.

14. Pursuant to cl 4.3 (‘Height of Buildings’) of the KLEP, the Site has a 21m height control at the northern and southern portions of the Site, respectively. The proposed development stands at maximum of 20.94m at its highest point.

15. In compliance with the flood planning requirements under cl 5.21 of the KLEP, the Applicant has provided a flood impact report under Tab 6 of the Class 1 Application. The proposed management of stormwater is incorporated in the civil design for the site as shown in the amended stormwater plans filed 20 July 2022.

16. The Site is not mapped as being affected by acid sulfate soils pursuant to the Acid Sulfate Soils Map under cl 6.1 of the KLEP.

17. Pursuant to cl 6.5 of the KLEP, the proposed development requires a controlled activity approval from the relevant consent authority for airspace operations. On 11 August 2021, Sydney Airport issued a Notice of no objection to the proposed development which is annexed to the conditions of consent at Annexure A of this judgment.

18. The Development Application comprises earthworks for the provision of the basement levels for car parking. In compliance with the requirements under clause 6.2 of the KLEP, a geotechnical report found at Tab 10 of the Class 1 Application has been accepted by the Respondent.

19. A number of State Environmental Planning Policies (SEPPs) that applied to the Proposed Development have since been repealed during the appeal process. The provisions were transferred into new State Environmental Planning policies and the majority did not contain a savings provision. Pursuant to s 30A(2) of the Interpretation Act 1987, where provisions are transferred, the “transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.” Section 30A(2) of the Interpretation Act 1987 confirms that where a provision has been transferred, it is to be interpreted in the same way as it was under the old instrument. The new / old SEPPs where applicable have been dealt with below, noting the relevant provisions that apply in the assessment of the Amended Development Application.

20. The Development Application was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to State Environmental Planning Policy (Resilience and Hazards)) 2021 (Resilience and Hazards SEPP).

21. A Preliminary and a Detailed Site Investigation prepared by Foundation Earth Sciences both are included in the Development Application documents originally lodged with Council and filed under Tab 7 and Tab 8 of the Class 1 Application. Consequent to the recommendations of these studies, the Applicant organised for the preparation of a further Remediation Action Plan located at Tab 9 of the Class 1 Application.

22. Provision of this information has satisfied the Respondent and the Court that there has been adequate and appropriate consideration of the contamination status of the Site and method of remediation in accordance with s 4.6 of the Resilience and Hazards SEPP.

23. The Development Application was lodged under the provisions of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure). On 1 March 2022, SEPP Infrastructure was repealed, and its provisions were transferred to State Environmental Planning Policy (Transport and infrastructure) 2021 (Transport SEPP). Section 2.119 of the Transport SEPP addresses the impact of road noise on non-road development. It provides that prior to granting development consent, a consent authority must consider any relevant guidelines issued by the Planning Secretary and for residential development, that noise levels within the development will not exceed the statutory threshold under s 2.119(3)(a)-(b). In satisfaction of s 2.119, an acoustic report prepared by Acoustic Works dated 17 July 2022 has been included in the Amended Application and filed on 20 July 2022.

24. Provision of this information has satisfied the Respondent that the Proposed Development complies with the relevant guidelines for management of road noise on development, and that appropriate measures are in place to ensure that the maximum statutory thresholds for noise levels in residential development are not exceeded. The Applicant has also accepted conditions of consent requiring relevant acoustic attenuation to the Proposed Development.

25. The Development Application was lodged under the provisions of the Greater Metropolitan Regional Environmental Plan No 2—Georges River Catchment 1991 (Georges River REP No 2). On 1 March 2021, the Georges River REP No. 2 was repealed, and its provisions were transferred to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

26. The Respondent has reviewed the documents comprising the Development Application and is satisfied that the development is consistent with the relevant planning principles and mandatory considerations under s 11.7(1)-(13) of the Biodiversity SEPP.

27. The Development Application proposes a boarding house within a B2 Zone and was therefore submitted in accordance with Div 3, Part 2 of the ARH SEPP.

28. On 1 March 2022, the ARH SEPP was repealed, and its provisions transferred to the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). Given that the Development Application was lodged prior to the commencement of the Housing SEPP and the Development Application had not been determined before the commencement date, the ARH SEPP continues to apply in accordance with the savings and transitional provisions under s 7A of the Housing SEPP.

29. In accordance with cl 29 of the ARH SEPP, the following matters are addressed as follows:

1. Clause 29(1)(c): the Proposed Development is entitled to a floor space ratio (FSR) bonus of 0.5:1 in addition to the 2.5:1 maximum FSR control under the Kogarah Local Environmental Plan 2013 (KLEP). The Amended Application now proposes an FSR of 2.44:1 and does not rely on the FSR bonus under the ARH SEPP.

2. Clause 29(2)(a): the Proposed Development complies with the maximum permissible building height under the KLEP;

3. Clause 29(2)(b): the Respondent is satisfied that the proposed design of the front setback area (including the elevated landscaping strip along the level 02 units) is compatible with the surrounding streetscape area;

4. Clause 29(2)(c): the proposed communal living room will receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter;

5. Clause 29(2)(d): the development provides for private open space areas greater than 20m² to units G03-G06 along the ground floor, and a communal open space area of 94 m² on level 05 for the use of lodgers. The boarding house manager’s room provides for a private open space area greater than 8m².

6. Clause 29(2)(e) – the development provides for 22 car parking spaces, including 1 space for the boarding house manager.

7. Clause 29(2)(f) – all boarding rooms for the Proposed Development have a gross floor area of greater than or equal to 17m² (excluding any area used for the purposes of private kitchen or bathroom facilities).

30. Clause 30 of the ARH SEPP provides that a consent authority must not grant consent unless it is satisfied that the proposed development satisfies the provisions under sub-cl 30(1). In compliance with the cl 30(1) provisions, the Proposed Development:

1. includes a communal living room;

2. does not include any boarding rooms with a GFA of more than 25m² (excluding area dedicated for the purpose of a private kitchen or bathroom);

3. does not propose any rooms to be occupied by more than 2 lodgers;

4. provides private bathroom and kitchen facilities for each lodger;

5. includes a dwelling for the boarding house manager;

6. orients all ground floor boarding rooms to the rear of the site and away from its frontage to Park Road; and

7. provides for more than one bicycle space per every 5 boarding rooms (8 spaces required, 9 spaces proposed).

31. Pursuant to cl 30A of the ARH SEPP, the Respondent agrees that the Proposed Development is compatible with the character of the local area.

32. In compliance with the relevant requirements under the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), the applicant has provided an updated BASIX Certificate consistent with the architectural changes proposed in the Amended Application and filed on 20 July 2022.

33. Objectors made written submissions and the Court heard from a number of objectors and local residents with concerns as to the nature of the development as it was exhibited at the time.

34. The Amended Application seeks to address and ameliorate these concerns, most of which are reflected in the Respondent’s Statement of Facts and Contentions filed 22 April 2022. Included below is a summary provided by the parties of each concern and the ways the Amended Application has sought to address them.

1. Height

1. One of the objections raised concern over the proposed height of the building, with potential view loss impacts on surrounding properties.

2. As outlined at paragraph 19(f), the proposed development (as amended) provides for a height that is compliant with local planning controls.

3. In addition, the Amended Application has further recessed the upper levels of the building and minimised the visual bulk of the building from level 3 upwards.

2. Increase to Local Traffic Congestion

1. Another objection raised concern over the impact of the development on traffic congestion along Park Road and potential safety issues in vehicles turning onto the Park Road from the driveway.

2. The Amended Application proposes 40 boarding rooms and 22 car parking spaces. This is considerably below the threshold for the DA to be considered ‘traffic-generating development’ pursuant to s 2.121 of the Transport SEPP.

3. The Amended Application has further provided for an increased visual splay on the northern boundary of the driveway, expanding the range of view for exiting vehicles in order to further ensure the safety of drivers and pedestrians.

35. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

36. 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.

Notations:

37. The Court notes that:

1. Georges River 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 DA2021/0295 in accordance with the documents listed below:

Drawing Title	Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
Site Plan Analysis	DA-01	G	08.07.2022	Urban Link Architects
Demolition Plan	DA-02	G	08.07.2022	Urban Link Architects
Basement 02	DA-101	G	08.07.2022	Urban Link Architects
Basement 01	DA-102	G	08.07.2022	Urban Link Architects
Ground Floor Plan	DA-103	G	08.07.2022	Urban Link Architects
Level 01 Floor Plan	DA-104	G	08.07.2022	Urban Link Architects
Level 02 Floor Plan	DA-105	G	08.07.2022	Urban Link Architects
Level 03 Floor Plan	DA-106	G	08.07.2022	Urban Link Architects
Level 04 Floor Plan	DA-107	G	08.07.2022	Urban Link Architects
Level 05 Floor Plan	DA-108	G	08.07.2022	Urban Link Architects
Roof Plan	DA-109	G	08.07.2022	Urban Link Architects
Elevations	DA-201	G	08.07.2022	Urban Link Architects
Elevations	DA-202	G	08.07.2022	Urban Link Architects
Streetscape Character Analysis	DA-203	G	08.07.2022	Urban Link Architects
Sections	DA-301	G	08.07.2022	Urban Link Architects
Driveway Profile	DA-302	G	08.07.2022	Urban Link Architects
General Room Layout – Elevation	DA-304	G	08.07.2022	Urban Link Architects
GFA Diagrams	DA-401	G	08.07.2022	Urban Link Architects
Shadow Diagram June 21	DA-402	G	08.07.2022	Urban Link Architects
View from the Sun June 21	DA-403	G	08.07.2022	Urban Link Architects
Height Plane Analysis	DA-404	G	08.07.2022	Urban Link Architects
Finishes Schedule	DA-901	G	08.07.2022	Urban Link Architects
Future Development – GFLevel 03	DA-1101	G	08.07.2022	Urban Link Architects
Future Development – Level 04-05	DA-1102	G	08.07.2022	Urban Link Architects
Drawing Title	Drawing Number	Revision	Date	Prepared by
Future Streetscape + Driveway Options	DA-1103	G	08.07.2022	Urban Link Architects
Amended Landscape Plans
Landscape Plan: Ground Floor & Level 2	LS01	D	27.06.2022	Melissa Wilson Landscape Architects
Landscape Plan: Level 4 & 5	LS02	D	27.06.2022	Melissa Wilson Landscape Architects
Amended Stormwater Plans
General Cover Page	D01	B	23.06.2022	United Consulting Engineers
Ground Floor Drainage Plan	D02	B	23.06.2022	United Consulting Engineers
Basement 1 Drainage Plan	D03	B	23.06.2022	United Consulting Engineers
Basement 2 Drainage Plan	D04	B	23.06.2022	United Consulting Engineers
Soil and Water Management Plan	D05	B	23.06.2022	United Consulting Engineers
Reports/Supporting Documentation
Document Title		Date		Prepared by
Waste Management Plan		July 2022		Dickens Solutions
BASIX Certificate Certificate Number: 1186017M_04		8 July 2022		AGA Consultants
Acoustic Report		17 July 2022		Acoustic Works
Plan of Management		July 2022		GAT & Associates

2. The amended development application documents listed above were lodged on the NSW planning portal on 22 July 2022

3. The amended development application was filed with the Court on 20 July 2022.

Orders:

38. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA2021/0295 for demolition of existing structures, tree removal and construction of a 6-storey mixed use development comprising a ground floor commercial tenancy, a 40 room Boarding House including a communal room, managers room and associated amenities above two levels of basement car parking subject to conditions contained in Annexure ‘A’.

3. The Applicant is to pay the Respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (1121106, pdf)

Architectural Plans (31348901, pdf)

Landscape Plans (1675473, pdf)

Stormwater Plans (2033080, pdf)

Plan of Management (4014343, pdf)

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Decision last updated: 03 August 2022