Wen v Georges River Council

[2020] NSWLEC 1603

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wen v Georges River Council [2020] NSWLEC 1603

Hearing dates:

Conciliation conference on 3 November 2020 and 25 November 2020

Date of orders:

3 December 2020, and amended on 21 December 2020

Decision date:

03 December 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in schedule 2 to Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $8,500.00 within 28 days.

(3) The appeal is upheld.

(4) Development application DA2020/0147 seeking demolition of existing structures and construction of a four storey boarding house comprising 39 boarding rooms plus 1 onsite managers room and a basement parking on Lots 3 and 4 in DP 331095, known as 3 and 3A Cambridge Street Penshurst NSW 2222 is approved subject to the conditions contained in annexure A.

Catchwords:

DEVELOPMENT APPLICATION – boarding house development – R3 Medium Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Hurstville Local Environmental Plan 2012

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy (Infrastructure) 2009

State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Jiang Wen (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Puckeridge (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/168120

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA2020/0147 by Georges River Council (the Respondent) for the demolition of existing structures and construction of a four storey boarding house comprising 40 rooms and basement parking on Lots 3 and 4 in DP 331095, known as 3 and 3A Cambridge Street, Penshurst (the site).

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 3 November 2020. I presided over the conciliation conference.

3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. The agreement required the amendment of drawings and other documents, for which purpose I granted an adjournment. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 25 November 2020.

5. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [9], and as follows:

1. The site is located within the R3 Medium Density Residential zone as identified in the Hurstville Local Environmental Plan 2012 (HLEP). The provisions of the R3 zone permits boarding house development with consent that is consistent with the objectives of the zone which are as follows:

Objectives of zone

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

•  To provide a variety of housing types within a medium density residential environment.

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

•  To ensure that a high level of residential amenity is achieved and maintained.

•  To provide for a range of home business activities, where such activities are not likely to adversely affect the surrounding residential amenity.

2. The maximum FSR for the Site as shown on the FSR Map at cl 4.4 of the HLEP is 1:1, although the application benefits from the bonus FSR provided under cl 29(1)(c)(i) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP), resulting in a maximum allowable FSR for the development of 1.5:1. On the basis of Drawing No. 4002 (Revision B), I am satisfied that the floor space calculations, results in a floor area is 1.497:1 and so complies with the maximum FSR applicable to the site.

3. The height of buildings standard at cl 4.3 of the HLEP is 12m, and I note the proposed development is within the height plane formed by the maximum height of buildings standard on the site.

4. The Affordable Housing SEPP, contains standards at cl 29 that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards.

5. On the basis of the streetscape character analysis at Drawing 3003B, I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP.

6. On the basis of the following, I am satisfied in respect of those matters set out at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land:

• The Preliminary Site Investigation Report prepared by Foundation Earth Sciences, dated 28 August 2020.

• The Detailed Site Investigation Report also prepared by Foundation Earth Sciences and dated 30 October 2020 which recommended that a Site Specific Risk Assessment to be carried out to manage environmental concerns based on the results of groundwater investigation.

• A Site Specific Risk Assessment prepared by Environmental Risk Sciences Pty Ltd dated 12 November 2020.

• Conditions of consent that reflect the above including Condition A, requiring a Ground Water Management Plan to be provided prior to commencement.

7. Clause 45(2) of the State Environmental Planning Policy (Infrastructure) 2009 (Infrastructure SEPP) provides that development proposed to be carried out within 5m of an exposed overhead electricity power line must first give written notice to the relevant electricity supply authority and take into consideration any response to a notice received within 21 days of the giving of the notice.

8. The proposed development proposes to remove the existing power pole fronting 3A Cambridge Street as it is located within the proposed driveway. The pole will be relocated further to the south-east adjacent to 3A Cambridge Street. Council referred the development application to an electricity supply authority, Ausgrid, on 24 April 2020 for comments.

9. I note the parties accept that correspondence has been entered into that would not prevent the grant of consent, pursuant to cl 45(2) of the Infrastructure SEPP.

10. Finally, I am satisfied that the application is accompanied by a BASIX certificate (BASIX Certificate, No. 1086879M, dated 27 March 2020), prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).

7. 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. 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’ decision.

8. 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.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in schedule 2 to Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $8,500.00 within 28 days.

3. The appeal is upheld.

4. Development application DA2020/0147 seeking demolition of existing structures and construction of a four storey boarding house comprising 39 boarding rooms plus 1 onsite managers room and a basement parking on Lots 3 and 4 in DP 331095, known as 3 and 3A Cambridge Street Penshurst NSW 2222 is approved subject to the conditions contained in annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A (483522, pdf)

Architectural Drawings (23660486, pdf)

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Amendments

21 December 2020 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.17, the slip rule, on the application of the parties and by the Court’s own motion, amend the orders to add the order that was otherwise omitted as follows:

The Applicant is to pay the Respondent’s costs thrown away in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $8,500.00 within 28 days.

Decision last updated: 21 December 2020