Signature Properties No. 5 Pty Ltd v Penrith City Council

[2021] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

Signature Properties No. 5 Pty Ltd v Penrith City Council [2021] NSWLEC 1025

Hearing dates:

Conciliation conference on 7, 14 and 21 December 2020, final agreement filed 13 January 2021

Date of orders:

15 January 2021

Decision date:

15 January 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend Development Application DA20/0435 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked ‘A’.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the DA, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $7,530.00.

(3) The appeal is upheld.

(4) The DA for the construction of a two-storey boarding house with twelve (12) boarding rooms and three (3) at grade car parking spaces and associated landscaping at 26 Hargrave Street, Kingswood (legally known as Lot 34 in Deposited Plan 215146) is approved subject to the conditions set out in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Penrith Local Environmental Plan 2010

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

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2) 1997

Texts Cited:

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

Category:

Principal judgment

Parties:

Signature Properties No. 5 Pty Limited (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Penrith City Council (Respondent)

File Number(s):

2020/253262

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA20/0435 (DA). The DA sought consent for the construction of a 12 room boarding house with at grade car parking (the proposal) at 26 Hargrave Street, Kingswood (the site) by Penrith City Council (the Council).

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 was held on 7, 14 and 21 December 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams.

4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. The amended proposal is for the construction of a two storey boarding house, containing 12 boarding rooms and associated at grade car parking. The proposal has been amended to resolve the contentions raised by the Respondent.

6. 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.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, the parties agree, and I am satisfied, the Penrith Local Environmental Plan 2010 (PLEP) is the relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the amended proposal is permissible with consent.

9. I am satisfied that the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) is an additional relevant environmental planning instrument and the site is located within an accessible area as defined in the ARH SEPP. Accordingly, cll 29-30A of the ARH SEPP apply to the amended proposal.

10. Evidence of owner’s consent has been provided with the DA.

11. As required by the EPA Act, the DA was publicly exhibited between 17 and 31 July 2020 and submissions have been considered in the Respondent’s assessment of the DA.

12. Since the amended proposal maintains the proposed number of boarding rooms but increases the front setback whilst also generally improving the proposed streetscape presentation, the Respondent submits, and I am satisfied, that re-notification of the amended proposal is not necessary.

13. The parties agree, and I am satisfied, the amended proposal is consistent with all relevant development standards and associated built form controls set out within the PLEP.

14. The parties agree, and I am satisfied, the amended proposal complies with the must not refuse criteria for boarding houses set out in cl 29 of ARH SEPP.

15. Further, the amended proposal complies with the relevant development standards for boarding houses set out in cl 30 of ARH SEPP.

16. Additionally, the parties’ experts agree, and I am satisfied, the amended proposal is compatible with the character of the local area as required by cl 30A of ARH SEPP.

17. The amended proposal has generally improved the composition and presentation of the building when viewed in the streetscape. Amenity, outlook and privacy for lodgers and neighbouring properties, has been improved in the amended proposal by the introduction of privacy screens and appropriately-oriented windows.

18. I am satisfied the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land have been considered, in particular cl 7(1). Given the site's previous residential use, the land is unlikely to be contaminated or to require remediation.

19. A BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate.

20. I am satisfied the requirements set out at cl 4 of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) have been addressed by the amended proposal and appropriate conditions of consent have been imposed in relation to water quality and quantity.

21. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

22. The Court orders that:

1. The Applicant is granted leave to amend Development Application DA20/0435 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked ‘A’.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the DA, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $7,530.00.

3. The appeal is upheld.

4. The DA for the construction of a two-storey boarding house with twelve (12) boarding rooms and three (3) at grade car parking spaces and associated landscaping at 26 Hargrave Street, Kingswood (legally known as Lot 34 in Deposited Plan 215146) is approved subject to the conditions set out in Annexure ‘A’.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (257316, pdf)

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