Setia v Cumberland Council

Case •

[2022] NSWLEC 1026

•

25 January 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Setia v Cumberland Council [2022] NSWLEC 1026
Hearing dates: Conciliation conference on 23 November 2021 and 10 December 2021
Date of orders: 25 January 2022
Decision date: 25 January 2022
Jurisdiction:Class 1
Before: Bindon AC
Decision:

The Court orders that:

1) The appeal is upheld.

2) Development Consent is granted to development application DA/2021/0323 for the demolition of existing structures and construction of a two (2) storey boarding house containing 25 boarding rooms with car parking at 29 Boronia Street, South Wentworthville, subject to the conditions annexed hereto and marked “Annexure A”.

Catchwords:

DEVELOPMENT APPLICATION – boarding house –– conciliation conference – agreement between the parties – orders

Legislation Cited:

Cumberland Local Environmental Plan 2021, cl 1.8A

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

Holroyd Local Environmental Plan 2013, cll 2.7, 4.3, 4.4, 6.2, 6.3, 6.7, 6.8

Land and Environment Court Act 1979, s 34

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 No 55—Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 20, 21, 22, 23, 24, 25 26, 27, 27A, 27B, Pt 3, Div 2

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (6 April 2021)

Category:Principal judgment
Parties: Siti Setia (Applicant)
Cumberland Council (Respondent)
Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Cumberland Council (Respondent)
File Number(s): 2021/226672
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 Cumberland Council (Council) of Development Application No 2021/0323 (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 1,037m2 parcel of land identified as Lot A in DP 376576 at 29 Boronia Street, South Wentworthville (the site). The DA as submitted to the Council on 21 June 2021 sought consent for demolition of the existing structures, removal of three trees and the construction of a part two part three storey boarding house containing 26 boarding rooms, including one manager’s room, with a basement level containing 13 car spaces, 6 motorcycle spaces, 6 bicycles spaces, one car wash bay, and associated landscaping, as illustrated in the Architectural Plans prepared by Texco Design, dated 26 May 2021 Revision A (Revision A plans). The DA was notified over the period 6 to 20 August 2021, resulting in the receipt of 38 objections.

  3. On 10 August 2021, the Applicant lodged this Class 1 Appeal with the Court. On 7 September 2021 the Council filed its Statement of Facts and Contentions (SOFC). 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 23 November 2021 and 10 December 2021. Due to the Court’s COVID-19 Pandemic Arrangements Policy (6 April 2021) (COVID-19 Policy) restrictions in place at the time, there was no site view undertaken as part of the proceedings and oral submissions from objectors were taken via MS Teams, prior to commencement of the conference.

  4. Amendments to the architectural plans, prepared by Texco Design, dated 25 November 2021 Revision D, (Revision D Plans) were then made to address matters raised in the SOFC, concerns raised by Council during the s34 conference, and in the public submissions. The final plans and other documents that comprised the amended application, including an amended BASIX certificate, were uploaded by the Applicant, with the agreement of the Council, to the NSW planning portal on 13 December 2021. On 13 December 2021 the Applicant provided to the Court a copy of the uploaded documents along with a copy of the s 34 agreement, of the same date, along with draft conditions of consent.

  5. The main changes between the Revision A plans filed with the Class 1 Application and the Revision D Plans the subject of the s34 agreement are:

  1. The basement level has been reconfigured to permit two additional pockets of deep soil planting (one to each of the side boundaries), increase the number of disabled parking spaces from 1 to 2 and remove the common laundry. Instead of a communal laundry, each unit is now provided with its own combined washer/drier appliance.

  2. At the ground floor level, the central communal outdoor space located between the eastern and western buildings has been substantially increased in size and landscaped area. The common room has increased in area from 28.37m2 to 47.06m2 by combining it with the former manager’s room. The northern side boundary setback of the eastern building has been increased from 0.9m to 2.2m to allow pedestrian access (and fire egress), and maintain planting along the boundary. The reconfigured plan has resulted in the loss of two boarding rooms on this level.

  3. There are no substantial changes to the first floor level, although 1.8m high privacy screens have been added to the outside edge of the balconies to Rooms 106 and 107.

  4. The attic level (found only in the eastern building) has been reconfigured to provide for two instead of one boarding room, and the roof pitch on the northern side of this level decreased slightly to accommodate the revised floor plan.

  5. As a result of the above changes the total number of rooms (including manager’s room) has been reduced from 26 to 25.

  1. 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

  1. The relevant jurisdictional matters have been identified by the parties. In relation to the Holroyd Local Environmental Plan 2013 (HLEP) 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 HLEP.

  2. The maximum height of the development, as amended, is compliant with the 9.0m height of buildings development standard at cl 4.3 of the HELP (refer Drawing 017 Rev D).

  3. The development, as amended, has a FSR of 0.7:1 which is compliant with the FSR development standard at cl 4.4 of the RLEP of 0.7:1 (refer Drawing 007 Rev D).

  4. Clause 6.2 Earthworks applies. The matters for consideration in cl 6.2(3) have been addressed in the application and/or the conditions of consent. Parts of the basement have a zero setback to the north and south side boundaries. Conditions 54 - 56 of the consent are included to ensure excavation can be carried out without impacting on the adjoining properties. Erosion and Sediment Control measures are also provided for in the conditions of consent (Conditions 20-21).

  5. Clause 6.3 requires the consent authority to be satisfied that various essential services are available, or that adequate arrangements have been made to make them available. The parties agree this is the case, for the essential services of water supply, electricity supply, stormwater drainage, sewage disposal and road access.

  6. Clause 6.7 Stormwater management applies. The matters for consideration in cl 6.7(2) have been addressed in the application, and in particular in the Stormwater Concept Design plans prepared by JCO Consultants Pty Ltd, dated 25.11.21 and/or various conditions of consent.

  7. Clause 6.8 Salinity applies as the Site is located within an area identified as having “Moderate Salinity Potential”. The matters for consideration in cl 6.8(4) have been addressed in the application and the parties agree the development is not likely to impact on the salinity processes on the land.

  1. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the development of boarding houses located in the R3 Zone. Clauses 29 and 30 set out a number of development standards that apply to the DA.

  2. Clause 29 refers to the standards that cannot be used to refuse consent. This is addressed in the Statement of Environmental Effects prepared by Minto Planning Services, dated June 2021 (SEE) and the parties agree the development satisfies those standards.

  3. Clause 30 of the SEPP ARH contains standards for which the consent authority must be satisfied. This is addressed in the SEE and Council is satisfied the development generally complies with the relevant standards, and specifically:

  1. One communal living room is provided, and therefore cl 30(1)(a) is satisfied.

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

  3. No boarding room has been designed to accommodate more than 2 lodgers, and the approved plans and the Amended Plan of Management prepared by RoRo Estate Pty Ltd dated November 2021 (POM) limit the number of rooms to 23 double boarding rooms, one single boarding room and one single manager’s room. Clause 30(1)(c) is therefore satisfied.

  4. Bathroom and kitchen facilities are provided to each room and therefore cl 30(1)(d) is satisfied.

  5. A manager’s room (Room G02) is provided, and therefore cl 30(1)(e) is satisfied.

  6. At least one parking space for a bicycle and one for a motorcycle are provided for every 5 boarding rooms. The development provides 6 bicycle spaces and 6 motorcycle spaces. Therefore cl 30(1)(h) is satisfied.

  1. The parties are satisfied the development is also compatible with the character of the local area, for the reasons set out in the SEE, and therefore cl 30A is satisfied.

  2. 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 Preliminary Site Investigation Without Sampling prepared by Dr Upsilon Environments Pty Ltd dated 22 July 2021 (Preliminary Site Investigation Report) concluded that, based on the historical information for this site and a site inspection, contamination of the land is unlikely, and subject to the implementation of the recommendations in the report, the Site can be made suitable for the proposed development. Condition 23 requires implementation of the recommendations of the Preliminary Site Investigation Report.

  3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), an amended BASIX Certificate number 1195397M _04 dated 3 December 2021 has been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent.

  4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP Sydney Harbour) applies to the land and cl 20(a) requires the consent authority to consider those matters referred to in Pt 3, Div 2. The Council’s position, as advised in the Joint Jurisdictional Note provided to the Court, is that the development will have no impact on or implications for the matters referred to in cll 21 to 26, and cll 27, 27A and 27B are not applicable.

  5. The Cumberland Local Environmental Plan 2021 (CLEP) came into force on 5 November 2021. Pursuant to the savings provisions at cl 1.8A of the CLEP the DA is to be determined as if the plan had not commenced.

Disposal of proceedings in accordance with the parties’ decision

  1. 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.

  2. The Court notes:

  1. That Cumberland Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for the development application number 2021/0323.

  2. The applicant uploaded the amended application on the NSW planning portal on 13 December 2021.

  3. The applicant filed the amended application with the Court on 13 December 2021.

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development Consent is granted to development application DA/2021/0323 for the demolition of existing structures and construction of a two (2) storey boarding house containing 25 boarding rooms with car parking at 29 Boronia Street, South Wentworthville, subject to the conditions annexed hereto and marked “Annexure A”.

…………………………..

J Bindon

Acting Commissioner of the Court

(Annexure A) (374203, pdf)

(GROUND FLOOR PLAN) (6466678, pdf)

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Decision last updated: 25 January 2022

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