Worldmark Investments Pty Ltd v Penrith City Council

[2020] NSWLEC 1385

Land and Environment Court

New South Wales

Medium Neutral Citation:

Worldmark Investments Pty Ltd v Penrith City Council [2020] NSWLEC 1385

Hearing dates:

Conciliation conference on 19 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the development application No. 19/0535 and rely upon the amended plans and documents referred to in Annexure A.

(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 (NSW) in the agreed amount of $3,000 in full and final settlement of all Council's costs thrown away in these proceedings within 28 days of the date of the Court’s orders.

(3)   The appeal is upheld.

(4)   Development application DA19/0535 seeking consent demolition of existing structures and construction of a 11-room boarding house is approved subject to the conditions of consent 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

Category:

Principal judgment

Parties:

Worldmark Investments Pty Ltd (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
A Avery (Solicitor) (Respondent)

Solicitors:
Greenaway & Tohme Solicitors Pty Ltd (Applicant)
Penrith City Council (Respondent)

File Number(s):

2019/400762

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) against Penrith City Council’s (Council) deemed refusal of a Development Application No. 19/0535 (DA) for the demolition of existing structures and construction of a 11-room boarding house at 37 Great Western Highway, Kingswood (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 19 August 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 an amended development application subject to conditions.

4. 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.

5. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied in a short statement marked Exhibit 1 and placed on the Court file.

6. Having considered the parties’ submissions in relation to jurisdiction, and the amended application 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.

7. In that regard, I note the parties’ agreement that the amended development complies with the mandatory development standards in State Environmental Planning Policy (Affordable Rental Housing) 2009.

8. In accordance with cl 30 the amended design includes:

1. At least one communal living room will be provided;

2. No boarding room has a gross floor area of more than 25 square metres;

3. No boarding will be occupied by more than 2 adult lodgers;

4. Adequate bathroom and kitchen facilities are available for each lodger;

5. No boarding house manager is required;

6. The development is not on land zoned primarily for commercial purposes; and

7. Adequate car, motorcycle, and bicycle parking spaces are provided.

9. The planners retained by the parties are also satisfied that the amended development is compatible with the character of the local area as required by cl 30A.

10. With respect to State Environmental Planning Policy No 55 – Remediation of Land the Council officers have investigated the aerial mapping facility and site usage records and concluded the site is unlikely to have been used for a potentially contaminating activity. Therefore, the consideration under cl 7 has been satisfied.

11. A certificate dated 10 August 2020 prepared Sight Building Design demonstrates compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

12. In respect to Penrith Local Environmental Plan 2010 (PLEP 2010) the evidence is that the site is zoned R3 Medium Density Residential, and the proposed boarding house development is permissible with consent.

13. The development has also been assessed to meet the objectives of the R3 Zone in accordance with cl 2.3 of the PLEP 2010; comply with the 8.5m maximum height development standard at cl 4.3 and to satisfy other relevant clauses, most particularly cl 7.1 (Earthworks), cl 7.4 (Sustainable development), cl 7.7 (Servicing). (These matters have been addressed in the building and drainage design, the Statement of Environmental Effects, the BASIX Certificate and conditions of consent).

14. I understand that the original application was notified in accordance with the relevant development control plan and the one submission received was considered. I am told that the amended plans are responsive to the objection and of lesser environmental impact negating the need for renotification.

15. 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 their decision.

16. The Court orders that:

1. The Applicant is granted leave to amend the development application No. 19/0535 and rely upon the amended plans and documents referred to in Annexure A.

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 (NSW) in the agreed amount of $3,000 in full and final settlement of all Council's costs thrown away in these proceedings within 28 days of the date of the Court’s orders.

3. The appeal is upheld.

4. Development application DA19/0535 seeking consent demolition of existing structures and construction of a 11-room boarding house is approved subject to the conditions of consent in Annexure A.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (243025, pdf)

**********