Sassine v Blacktown City Council

[2022] NSWLEC 1730

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sassine v Blacktown City Council [2022] NSWLEC 1730

Hearing dates:

13 December 2022

Date of orders:

23 December 2022

Decision date:

23 December 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application number DA-21-0071, seeking consent for demolition of existing dwelling house and structures and construction of a boarding house comprising of 8 self-contained boarding rooms and associated works at Lot 168 in Deposited Plan 238598, also known as 26 Mawson Road, Tregear, subject to the conditions of consent at Annexure 'A'.   

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Blacktown Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 4.7, 5.10

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environment Planning and Assessment Regulation 2000 cl 55, Sch1 Pt 1 cl 2A
Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 29, 30, 30A

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9

State Environmental Planning Policy (Housing) 2021, Sch 7

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

Category:

Principal judgment

Parties:

Charbel Sassine (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
L Raffaele (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/105111

Publication restriction:

No

Judgment

1. COMMISSIONER: Charbel Sassine (the Applicant) has appealed the refusal by Blacktown City Council (the Respondent) of its Development Application number DA-21-0071, made with owner’s consent, seeking consent for demolition of existing dwelling house and structures and construction of a boarding house comprising of 8 self-contained boarding rooms and associated works (the Proposed Development) at Lot 168 in Deposited Plan 238598, also known as 26 Mawson Road, Tregear, (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified by the Respondent between 6 and 20 May 2021. Seven submissions were received in response to the notification. The Development Application was re-notified by Council following amendment between 3 and 17 August 2022.

4. On 13 December 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site inspection had been undertaken prior to the conciliation conference as part of the proceedings, and objector submissions were taken during that view which identified concerns in relation to the compatibility of the Proposed Development with the character of the local area, including its presentation to the street, and matters relating to the overlooking, parking and security associated the development.

6. At the conciliation conference the Parties reached an 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 consent to the Applicant’s amended 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of Blacktown Local Environmental Plan 2015 (BLEP):

1. the Proposed Development is permissible with development consent in the R2 Low Density Zone under cl 2.3 of BLEP and the Parties agree, and I am satisfied, that the Applicant’s amended application is permissible within the R2 zoning of the Subject Site;

2. clause 2.3 BLEP requires that regard be had to the zone objectives in determining the Proposed Development, and in relation to this:

1. the relevant zone objectives in the R2 Low Density Residential Zone are:

• To provide for the housing needs of the community within a low density residential environment.

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

• To enable certain activities to be carried out within the zone that do not adversely affect the amenity of the neighbourhood.

2. the Parties have advised, and I am satisfied, that the Proposed Development, as amended, is compatible with the zone objectives.

3. under the provisions of cl 2.7 of BLEP demolition requires development consent, and in relation to this, the Applicant’s development application, as amended, seeks approval for the demolition of existing structures on the Subject Site, and is accompanied by a demolition plan;

4. under the provisions of cl 4.3 of BLEP in relation to the height of buildings on the Subject Site:

1. the maximum permissible building height is 9m; and

2. I am satisfied that the Proposed Development, as amended, is compliant with the maximum building height development standard;

5. under the provisions of cl 4.4 of BLEP in relation to the maximum floor space ratio for development on the Subject Site, the parties advise, and I agree, that there is no floor space ratio development standard applicable to development on the Subject Site;

6. under the provisions of cl 5.10 in relation to heritage conservation, the Parties have confirmed, and I am satisfied, that the Subject Site is not heritage listed and does not adjoin, and is not located in close proximity to, a heritage item;

2. in relation the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the Parties advise, and I am satisfied, that:

1. pursuant to the provisions of s 4.6 of SEPP R&H the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development; and

2. on the basis of the historical use of the Subject Site for residential purposes, and consistent with the advice of the Respondent in relation to the historic use of the site, the provisions of cl 4.6 of SEPP R&H have been addressed and the land is suitable for its intended continuing residential use through the Proposed Development;

3. in relation to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP):

1. ARH SEPP was in force at the time of the Applicant’s Development Application lodgement and was repealed at the time of gazettal of the State Environmental Planning Policy (Housing) 2021 (“SEPP Housing”);

2. SEPP Housing was gazetted 26 November 2021 and introduced new provisions for boarding house developments, and in relation to this:

1. Schedule 7A of the SEPP Housing includes savings and transitional provisions for development applications lodged prior to 26 November 2021, but not yet determined; and

2. the Applicant’s Development Application was lodged on 15 April 2021 and therefore the savings provisions under Sch 7A are invoked so that ARH SEPP continues to apply to the determination of the application in this appeal;

3. in relation to the provisions of cl 26 of ARH SEPP the Subject Site is zoned R2 Low Density Residential and boarding houses are permissible land use, with consent, in this zone and I am satisfied that the provisions of ARH SEPP apply to development on the Subject Site;

4. in relation to the provisions of cl 27 of ARH SEPP the Applicant’s proposed boarding house is development that is located on land within the R2 Low Density Residential zone, and as a consequence the provisions of ARH SEPP apply to the Proposed Development;

5. in relation to the provisions of cl 29(1), which concerns standards that cannot be used to refuse consent, I am satisfied that the Proposed Development:

1. is on land within the R2 Low Density Residential zone and does not contain a heritage item; and

2. pursuant to the BLEP is not subject to a maximum floor space ratio as the is no floor space ratio is applicable to development on the Subject Site; and

3. the Parties agree, and I am satisfied, that the provisions of cl 29 are satisfied;

6. in relation to the provisions of cl 29(2), which also concerns standards that cannot be used to refuse consent, I am satisfied that the Proposed Development also complies with the following controls in ARH SEPP:

1. building height: the maximum height permitted is 9m. The proposed development, as amended, is less than 9m;

2. landscape area: the front setback is compatible with the streetscape as confirmed by the Applicant’s Landscape Plans prepared by iScape Landscape Architecture, Rev A, dated 2 December 2022;

3. private open space: more than 20m² of open space is provided as confirmed by Drawing 05, Floor Plans, Rev H of the Applicant’s Architectural Plans;

4. parking: four (4) car spaces, two (2) motorbike spaces and three (3) bicycle spaces are provided as confirmed in the Applicant’s Drawing 05, Floor Plans, Rev H of the Applicant’s Architectural Plans;

5. provision of minimum boarding room sizes: all single rooms have an area greater than 12m² and less than 16m^2, and all double rooms have an area greater than 16m² as confirmed in Drawing 05, Floor Plans, Rev H of the Applicant’s Architectural Plans;

7. in relation to the provisions of cl 30 of ARH SEPP concerning standards for boarding houses, the Applicant’s statement of environmental effects prepared by Think Planners and dated 15 February 2021 provides a detailed assessment of the Proposed Development against this clause, and the Parties agree, and I am satisfied, that the proposed development satisfies the provisions of subcll 30(1)(a) to 30(1)(h) in this clause;

8. in relation to the provisions of cl 30A of ARH SEPP concerning the character of local area, the Applicant’s statement of environmental effects prepared by Think Planners and dated 15 February 2021 provides a detailed assessment of the character of the local area, and in relation to this:

9. the Parties’ expert town planners have agreed, and I am satisfied, that built form of the Proposed Development, as amended, which presents as a single storey to the street with the second storey element set back to the rear of the development, is compatible with the character of the local area which is predominantly single storey with occasional second storey elements;

4. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. the provisions of Ch 9 in relation to the Hawkesbury-Nepean River previously applied to the Subject Site at the time the Proposed Development was lodged and assessed. These provisions have now been repealed and functionally replaced by those of cl 6.13 of the version of SEPP B&C that is now in force, and:

2. in relation to the provisions of the former Ch 9 of SEPP B&C:

1. the general planning considerations, specific planning policies and recommended strategies must be considered and achieved, where possible, in the carrying out of development within the Hawkesbury-Nepean River catchment, and the applicable principles relevant to the Proposed Development include:

Consider the impact of the development concerned on the catchment; and

Consider the cumulative environmental impact of development proposal on the catchment.

2. the Parties have submitted, and I am satisfied, that the Proposed Development will not detract from the above listed principles given the nature of the development; and

3. environmental safeguards will be implemented and are shown on the Applicant’s drainage concept plans that accompany its development application;

4. in addition, the Applicant’s erosion and sediment controls will be in place throughout the construction phase of the Proposed Development and the parties’ agreed conditions of consent provide further assurance in relation to this matter; and

3. in relation to the provisions of cl 6.13 of SEPP B&C now in force, I am satisfied that the matters listed in subcl 6.13(2) have been considered in deciding whether development consent should be granted to the Proposed Development;

5. in relation to the provisions of State Environmental Planning Policy (BASIX Sustainability Index: BASIX) 2004, the Parties have advised, and I am satisfied, that:

1. the Applicant’s Development Application is supported by BASIX Certificate No. 1170378M_02 issued by AKV Pty Ltd and dated 12 December 2022, and this certificate confirms that the project passes the BASIX requirements; and

2. the Applicant’s BASIX Certificate satisfies the requirements of cl 2A in Pt 1 of Sch 1 to the Environmental Planning and Assessment Regulation 2000;

6. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [5]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant’s amended application.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

3. approval of the Proposed Development is in the public interest.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

13. The Court notes that:

1. the Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending its Development Application DA-21-00701 in accordance with the plans and documents listed below:

Plan no.	Drawn by	Dated
Architectural Plans (Revision H)
00 – Cover Sheet	Baini Design	28/11/2022
01 – Site Plan, Roof Plan	Baini Design	28/11/2022
02 – Site Analysis Plan	Baini Design	28/11/2022
03 – Demolition Plan	Baini Design	28/11/2022
04 – Shadow Diagrams	Baini Design	28/11/2022
05 – Floor Plans	Baini Design	28/11/2022
06 – Elevations, Section	Baini Design	28/11/2022
07 – 3D Views	Baini Design	28/11/2022
08 – Fencing Details	Baini Design
Landscape Plans
190.22/278’A’ Landscape Plan	iScape Landscape Architecture	02/12/2022
Report
Plan of Management	Think Planners	01/12/2022
BASIX Certificate No. 1170378M_02	AKV Pty Ltd	12/12/2022

2. the amended plans and documents referred to in paragraph (1) above were uploaded by the Applicant to the NSW Planning Portal on 9 December 2022, reference PAN-75110;

3. the amended plans and documents referred to in paragraph (1) above were filed with the Court on 14 December 2022.

Orders

14. The Court orders that:

1. The Applicant is to pay the Respondent’s costs that have been thrown away as a result of the amendments of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application number DA-21-0071, seeking consent for demolition of existing dwelling house and structures and construction of a boarding house comprising of 8 self-contained boarding rooms and associated works at Lot 168 in Deposited Plan 238598, also known as 26 Mawson Road, Tregear, subject to the conditions of consent at Annexure 'A'.

M Chilcott

Commissioner of the Court

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Decision last updated: 23 December 2022