Land and Environment Court New South Wales Medium Neutral Citation: Dalelaw Pty Ltd v Burwood Council [2020] NSWLEC 1330 Hearing dates: Conciliation conference on 20 July 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 to the conditions at Annexure A. (2) The appeal is upheld. (3) Development Application DA-2018/117 for the re-subdivision of the existing four lot into two lots and the construction of a boarding house on each lot, each comprising 24 rooms and a basement carpark at 11A Ethel Street, Burwood is approved subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – boarding house development – amended plans – agreement between the parties – orders Legislation Cited: Burwood Local Environmental Plan 2012 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) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55— Remediation of Land Category: Principal judgment Parties: Dalelaw Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) K Law (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Matthews Folbigg Lawyers (Respondent) File Number(s): 2019/263439 Publication restriction: Nil Judgment 1. COMMISSIONER: The Applicant, Dalelaw Pty Ltd, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Burwood Council of Development Application No. DA/2018/117. The development application, as amended, seeks consent for re-subdivision of the existing four lots into two lots and the construction of a boarding house on each new lot. The development is proposed at 11 A Ethel Street, Burwood (Lot 1 in DP 456981, Lot 9 Section 1 in DP 584, Lot 10 in Section 1 in DP 584, Lot 2 in DP 456981). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 3 December 2019. The parties were unable to reach agreement and the conciliation conference was terminated under s 34(4) of the LEC Act. At the request of the parties, the Court arranged a second conciliation conference on 20 July 2020. Following the second conciliation process, the parties agreed on an amended design for the development, as well as an agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons: 1. The development application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 2. Pursuant to the Burwood Local Environmental Plan 2012 (LEP 2012), the subject site is zoned R2- Low Density Development and I have had regard to the objectives of the zone in determining the application. A boarding house is permissible with consent in this zone. 3. The proposed development does not contravene any development standard in LEP 2012. 1. Pursuant to the Height of Buildings Map referred to in cl 4.3 of LEP 2012, the maximum permissible height of buildings on the site is 8.5 m. The proposal is compliant. 2. Pursuant to the Floor Space Ratio Map referred to in cl 4.4 of LEP 2012, the maximum permissible floor space ratio on the site is 0.55:1. The proposal is compliant. 3. Pursuant to the Minimum Subdivision Lot Size Map referred to in cl 4.1 of LEP 2012, the minimum permissible lot size is 400m2. Each lot resulting from the proposed subdivision will be compliant. 4. With regard to cl 6.1 of LEP 2012 the site is nominated as Class 5 Acid Sulfate Soils but is not located within 500m of any Class 1,2,3 or 4 land. 1. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. I accept that the likelihood of contamination is low. 2. A BASIX certificate has been provided to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 3. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a boarding house. The division applies to the site as the site is zoned R2 Low Density Residential and I accept that the subject site meets the definition of 'accessible area' on the basis of the site being within 400m of Burwood Town Centre as required by SEPP ARH. 4. The development is compliant with the standards at cl 30 of SEPP ARH. 5. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area. 6. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in Condition 1 to the conditions at Annexure A. 2. The appeal is upheld. 3. Development Application DA-2018/117 for the re-subdivision of the existing four lot into two lots and the construction of a boarding house on each lot, each comprising 24 rooms and a basement carpark at 11A Ethel Street, Burwood is approved subject to the conditions at Annexure A. ……………………………….. D M Dickson Commissioner of the Court Annexure A (297567, pdf) ********** Amendments 31 July 2020 - Decision restricted. Please contact the Registry. 04 August 2020 - Removal of Plans 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: 04 August 2020