Varga Pty Ltd ATF the Liverpool Road Unit Trust v Strathfield Municipal Council

[2018] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:	Varga Pty Ltd ATF The Liverpool Road Unit Trust v Strathfield Municipal Council [2018] NSWLEC 1666
Hearing dates:	Conciliation conference on 3 December 2018
Date of orders:	10 December 2018
Decision date:	10 December 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [13] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Housing) 2009 Strathfield Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Varga Pty Ltd ATF The Liverpool Road Unit Trust (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Solicitors: M Sonter, Mills Oakley (Applicant) C Drury, Sparke Helmore (Respondent)
File Number(s):	2018/231527
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Strathfield Municipal Council of Development Application (DA) 2018/029, which seeks: demolition of existing structures; and construction of a multilevel storey boarding house on Lot 6 DP 2043, also known as 494-496 Liverpool Road, Strathfield South.

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 3 December 2018. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation.

4. Following 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 is to uphold the appeal and grant consent to DA 2018/029 with conditions.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the DA with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with the State Environmental Planning Policy (Affordable Housing) 2009 (SEPP ARH), specifically cll 25 and 30A, and the Strathfield Local Environmental Plan 2012 (SLEP 2012), specifically cl 4.6.

7. Compliance to the SEPP ARH is achieved through sufficient parking spaces for the number of proposed rooms with a car stacker and a design that is in character with the local area, pursuant to cll 29(2)(e) and 30A, respectively.

8. All relevant provisions of the SLEP 2012 are complied with in the proposed development submitted for consent, except for height, pursuant to cl 4.3. The non-compliance with the height standard is addressed through a written request for variation of the standard, pursuant to cl 4.6 of the SLEP 2012. Clause 4.6 establishes a number of preconditions that must be satisfied before the consent authority, which in this appeal being the Court, can exercise its power to grant consent. After review of the Applicant’s submitted cl 4.6 written request for variation in the height standard, I am satisfied that the requirements of cl 4.6(3) are adequately addressed. Contravention of the standard is justified and compliance would be unreasonable. The areas of the development that breach the height standard do not result in any adverse internal or external amenity, and the proposed height is compatible with other approved developments in the neighbouring area.

9. Therefore, pursuant to cl 4.6(4), I am satisfied that the objectives of the zone and the height standard are not compromised by the variation in height standard for this development. I am therefore satisfied that the proposed development is in the public interest.

10. The objectors’ issues raised at a previous conciliation conference are adequately addressed, by amended plans and conditions of consent. The amended plans result in improved articulation to the street and adjoining buildings, communal space functionality, car parking and waste management.

11. I am therefore 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 1979.

12. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. The Applicant is granted leave to rely on the amended drawings dated 30 October 2018 (as referred to in condition 1.1 of Annexure “A”) for the purpose of the development application.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $14,000 paid within 21 days of the making of these orders.

3. The Applicant’s written request under clause 4.6 of Strathfield Local Environmental Plan 2012 seeking a variation of the development control for height of buildings set out in clause 4.3 of the Strathfield Local Environmental Plan 2012 is upheld.

4. The appeal is upheld.

5. Development consent is granted to development application 2018/029 for the demolition of existing structures and construction of a boarding house at 494-496 Liverpool Road, Strathfield South subject to the conditions contained in Annexure “A”.

……………………….

S Bish

Commissioner of the Court

Annexure A

Amended plans

Decision last updated: 24 December 2018