Land and Environment Court New South Wales Medium Neutral Citation: Alpha Engineering & Development P/L v Penrith City Council [2020] NSWLEC 1350 Hearing dates: Conciliation conference on 15 July 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to in Condition 1 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 in the amount of $4,000.00 within 28 days of the Court's orders. (3) The appeal is upheld. (4) Development Application No. DA19/0241 seeking the demolition of existing structures, removal of trees and the construction of a two-storey boarding house and basement car parking at 159 Jamison Road, Penrith is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 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 Texts Cited: Penrith Development Control Plan 2014 Category: Principal judgment Parties: Alpha Engineering & Development P/L (Applicant) Penrith City Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) A Avery (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Penrith City Council (Respondent) File Number(s): 2019/363531 Publication restriction: No Judgment 1. COMMISSIONER: Alpha Engineering and Development Pty Limited (the Applicant) has appealed the refusal by Penrith City Council (the Respondent) of its development application DA19/0241 for demolition of existing structures, removal of trees and construction of a two storey boarding house with 21 boarding rooms and one manager's room, with basement car parking (the Proposed Development) at 159 Jamison Road, Penrith (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 15 July 2020, and I presided over the conciliation conference. 5. 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 consent to the Applicant's development application, subject to conditions. 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. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the jurisdictional prerequisites of relevance in these proceedings to be: 1. the Subject Site is zoned R3 Medium Density Residential under the provisions of Penrith Local Environmental Plan 2010 (PLEP) and the Applicant's proposed boarding house is a development that is permissible with consent in that R3 zone; 2. the Proposed Development (as amended): 1. is consistent with the objectives within cl 2.3 of the PLEP for the Subject Site's R3 zoning; 2. has a maximum height of 7.67m and so complies with the 8.5m maximum height of buildings development standard at cl 4.3 of PLEP; 3. does not contravene any other development standard in PLEP, and complies with the provisions of cl 7.1 (Earthworks), cl 7.4 (Sustainable development), and cl 7.7 (Servicing) of PLEP; 4. complies with the development standards in cl 30 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), including through the ensuring that: 1. at least one communal living room will be provided within the boarding house; 2. no boarding room has a gross floor area of more than 25 square metres; 3. no boarding room 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 as the boarding house has a capacity to accommodate less than 20 lodgers; 6. the Subject Site is not land zoned primarily for commercial purposes; and 7. four bicycle parking spaces and four motorcycle parking spaces will be provided for residents of the boarding house. 1. is compatible with the character of the local area in satisfaction of the provisions of cl 30A of the SEPP ARH. 1. A revised BASIX certificate dated 20 July 2020, prepared by Dural Group has been provided demonstrating compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; 2. The considerations under cl 7 of the State Environmental Planning Policy No 55—Remediation of Land have been satisfied, noting that the Parties have confirmed that an officer of the Respondent has investigated its aerial mapping facility and site usage records and concluded that the Subject Site is unlikely to have been used for a potentially contaminating activity. 1. I note that the Subject Site is not subject to a floor space ratio development standard under the provisions of cl 4.3 of PLEP. 2. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. The Respondent also advised that the Applicant's original development application was notified in accordance with the relevant provisions of the Penrith Development Control Plan 2014, and the submissions have been considered. The Parties agree that the amended plans are responsive to the objectives and of lesser environmental impact negating the need for re-notification. 4. I am further 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. 5. 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. 6. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to in Condition 1 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 in the amount of $4,000.00 within 28 days of the Court's orders. 3. The appeal is upheld. 4. Development Application No. DA19/0241 seeking the demolition of existing structures, removal of trees and the construction of a two-storey boarding house and basement car parking at 159 Jamison Road, Penrith is approved subject to the conditions in Annexure A. …………………………….. M Chilcott Commissioner of the Court Annexure A (313743, 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: 12 August 2020