Land and Environment Court New South Wales Medium Neutral Citation: Evacorp Pty Ltd v Penrith City Council [2020] NSWLEC 1317 Hearing dates: Conciliation conference on 29 April 2020 and 26 June 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) Leave is granted to the Applicant to amend the Development Application and rely on the plans listed in Condition 1 of the Conditions of Consent at 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 amount of $6,200, within 14 days of the date of this agreement. (3) The appeal is upheld. (4) Development Application No. DA18/1133 for the demolition of existing structures and construction of six (6) townhouses on Lot 53 DP 16330 and known as 170 Canberra Street, St Marys NSW 2760 is approved subject to the conditions annexed to this agreement as Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-unit residential development – 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 Cases Cited: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Emmott v Ku-ring-gai Municipal Council (1954) 3 LGRA 177 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 Nessdee Pty Ltd v Orange City Council [2017] NSWLEC 158 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Parramatta Development Control Plan 2011 New South Wales Planning and Environment, Child Care Planning Guideline, (August 2017) Category: Principal judgment Parties: Evacorp Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: T To (Applicant) A Avery (Solicitor) (Respondent) Solicitors: Winter Legal (Applicant) Penrith City Council (Respondent) File Number(s): 2019/274592 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Penrith Council (Council) of Development Application DA18/1133 (the DA). In exercising the functions of consent authority, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 1,075m2 allotment of land identified as Lot 53 DP 16330, at 170 Canberra Street, St Marys (the site). The DA, as originally submitted to Council on 12 November 2018, sought consent for demolition of existing structures and construction of a multi-unit residential development comprising seven two-storey town houses, each of two bedrooms, with at-grade parking in carports for seven cars, and associated drainage and landscaping works. Those plans were placed on public notification between 15 and 30 November 2018. No submissions were received. The DA was refused by Council officers under delegated authority on 12 March 2019 and the applicant commenced proceedings in the Court on 3 September 2019. 3. 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 29 April 2020 and 26 June 2020. Due to the COVID 19 restrictions in place at the time, there was no site inspection as part of the conciliation conference, at which I presided. 4. As a result of the discussions at the conciliation conference, amended plans and additional information were submitted to Council and the final s34 agreement and associated documents were all filed with the Court by 29 June 2020. 5. The main changes between the development as originally submitted to Council, as illustrated in "Issue B" plans prepared by Pre-Tech Pty Ltd (dated 15 October 2018), and the development the subject of the s34 agreement (Issue K plans, dated 13 June 2020) are: 1. The total number of town houses has been reduced from 7 to 6, in three sets of pairs. The carports that previously connected the town houses have been replaced by garages, integrated into the design of the dwellings, and landscaping; and 2. The driveway was relocated from the western side of the site to the eastern side. 1. 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 DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional matters of relevance in these proceedings. Those matters and how they are satisfied are set out in paragraphs 7 to 10 below. Satisfaction of jurisdiction 1. In relation to the Penrith Local Environmental Plan 2010 (PLEP 2010) 1. The site is zoned R3 Medium Density Residential and the proposed multi dwelling housing development is permissible with consent; 2. The development meets the objectives of the B3 Zone at cl 2.3 of PLEP 2010; 3. The development complies with the minimum lot size requirement of 800m2 at cl 4.1A. It has a site area of 1,075m2; 4. The development complies with the 8.5m maximum height development standard at cl 4.3. It has a maximum height of 6.93m; and 5. The development is also satisfactory in terms of 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. 1. In relation to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), the development, as the Parties' experts agree: 1. is acceptable in terms of cl 14(1), and (2), particularly (1)(e), in that at least 70% of the dwellings receive a minimum of 3 hours sunlight to the private open space areas in mid winter; 2. is acceptable in terms of cl 16A as it is compatible with the character of the local area; and 3. is acceptable in terms of cl 17 in that one dwelling is to be used for the purposes of 'affordable housing' as defined in the SEPP ARH for a minimum period of 10 years, and Condition 5 of the general conditions of consent that comprise Annexure A of the s34 agreement address this. 1. I am satisfied that the requirements of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) have been met for the following reasons: 1. Council has investigated its aerial mapping facility and site usage records and identified a small mound of fill-like material at the rear of the site; 2. The Applicant has provided an Asbestos Clearance Report (by EnviroTech Environmental and Engineering Consultancy Services, dated 5 May 2020) and the Council is now satisfied the site was unlikely to have been used for a potentially contaminating activity and is not contaminated. As such the consideration required under clause 7 of SEPP 55 has been satisfied; and 3. The conditions of consent that comprise Annexure A of the s34 agreement include a condition (number 22) that addresses disposal of any asbestos contamination should it be encountered during works. 1. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 971649M_03 dated 18 June 2020 has been provided demonstrating compliance with the BASIX SEPP. 2. 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. 3. The Court orders: 1. Leave is granted to the Applicant to amend the Development Application and rely on the plans listed in Condition 1 of the Conditions of Consent at 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 amount of $6,200, within 14 days of the date of this agreement. 3. The appeal is upheld. 4. Development Application No. DA18/1133 for the demolition of existing structures and construction of six (6) townhouses on Lot 53 DP 16330 and known as 170 Canberra Street, St Marys NSW 2760 is approved subject to the conditions annexed to this agreement as Annexure A. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (267718, pdf) Plans (1635248, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2020