Twinfly Investments Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

Twinfly Investments Pty Ltd v Northern Beaches Council [2019] NSWLEC 1452

Hearing dates:

Conciliation conference on 20 September 2019

Date of orders:

24 September 2019

Decision date:

24 September 2019

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Proceedings 2018/387730

 

The Court orders that:
(1)   The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in operational condition 1 in Annexure A.
(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $8,000.00 within 28 days of these orders.
(3)   The appeal is upheld.
(4)   Development application DA2018/1597 seeking demolition of existing structures and construction of a two-storey boarding house development with 18 boarding rooms, accommodation for a live-in manager and basement parking at 26 Frenchs Forest Road East, Frenchs Forest is approved subject to the conditions in Annexure A.

 

Proceedings 2018/387752

 The Court orders that:
(1)   The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in operational condition 1 in Annexure A.
(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $8,000.00 within 28 days of these orders.
(3)   The appeal is upheld.
(4)   Development application DA2018/1598 seeking demolition of existing structures and construction of a two-storey boarding house development with 18 boarding rooms, accommodation for a live-in manager and basement parking at 22 Frenchs Forest Road East, Frenchs Forest is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – appeals – two separate boarding house developments – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing)
State Environmental Planning Policy No 55 – Remediation of Land
Warringah Local Environmental Plan 2011

Category:

Principal judgment

Parties:

Twinfly Investments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
P Bean (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)

  Solicitors:
Mills Oakley (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s):

2018/387730; 2018/387752

Publication restriction:

No

Judgment

1. COMMISSIONER: These appeals concern two development applications for the demolition of existing structures and the construction of a two-storey boarding house development with 18 boarding rooms, accommodation for a live-in manager and basement parking. The first is at 26 Frenchs Forest Road East, Frenchs Forest, which is appeal number 18/387730. The second is at 22 Frenchs Forest Road East, Frenchs Forest, which is appeal number 18/387752. The appeals are lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development applications pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in each appeal, outlined in [7] and [8] below, are made as a result of agreements between the parties that were reached at a conciliation conference.

2. In each appeal, 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 20 September 2019. I presided over the conciliation conference for both appeals.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in each of the proceedings that was acceptable to the parties. The decision agreed upon, in each matter, is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. In each appeal, the main change brought about by the amendments to the development applications is the introduction of a car share arrangement, which provides a vehicle managed by the onsite manager for the exclusive use of the boarding house. The resulting basement for each of the proposed developments is reduced in size, which allows for increased deep soil landscaping.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended applications subject to conditions of consent, in each proceedings, is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works for each of the applications are for the purpose of a boarding house, which is a permissible use in the R2 Low Density Residential zone, pursuant to the Warringah Local Environmental Plan 2011 (“WLEP 2011”);

• Each of the proposed developments comply with the development standards in the State Environmental Planning Policy (Affordable Rental Housing) (“SEPP ARH”) as it applies to the development applications (noting that cl 30AA of the SEPP ARH does not apply to these applications by virtue of the savings provision in cl 54C);

• The amended plans for each proceedings were accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000; and

• Consideration has been given as to whether the two subject sites are contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Both sites have been used for residential purposes and do not require any remediation.

5. Having reached the state of satisfaction that each of the decisions are ones that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreements between the parties, I was not required to make, and have not made, any assessment of the merits of the development applications against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. In proceedings 2018/387730, the Court orders that:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in operational condition 1 in Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $8,000.00 within 28 days of these orders.

3. The appeal is upheld.

4. Development application DA2018/1597 seeking demolition of existing structures and construction of a two-storey boarding house development with 18 boarding rooms, accommodation for a live-in manager and basement parking at 26 Frenchs Forest Road East, Frenchs Forest is approved subject to the conditions in Annexure A.

8. In proceedings 2018/387752, the Court orders that:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to in operational condition 1 in Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act"), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in the sum of $8,000.00 within 28 days of these orders.

3. The appeal is upheld.

4. Development application DA2018/1598 seeking demolition of existing structures and construction of a two-storey boarding house development with 18 boarding rooms, accommodation for a live-in manager and basement parking at 22 Frenchs Forest Road East, Frenchs Forest is approved subject to the conditions in Annexure A.

…………………………

J Gray

Commissioner of the Court

Annexure A (122 KB) For Proceedings 18/387730

Annexure A (123 KB) For Proceedings 18/387752

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Decision last updated: 24 September 2019