Land and Environment Court New South Wales Medium Neutral Citation: Lombardi v Bayside Council [2020] NSWLEC 1397 Hearing dates: Conciliation conference on 19 June 2020 Date of orders: 27 August 2020 Decision date: 27 August 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The orders of the Court are: (1) The Applicant is granted leave to rely on the amended plans listed in condition 2 of the conditions at Annexure A to this agreement. (2) The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of these orders. (3) The appeal is upheld. (4) Development application no. DA 2019/250, as amended, for the demolition of existing structures and construction of a two-storey boarding house comprising 8 single rooms at 9 Fleet Street, Carlton is approved subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of a new boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: Daniele Lombardi (Applicant) Bayside Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Storey & Gough Lawyers (Australia) (Solicitor) (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/97347 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Daniele Lombardi (Applicant) who is appealing the actual refusal of their development application, DA 2019/250, by Bayside Council. The application seeks consent for demolition of existing structures and construction of a two-storey boarding house at 9 Fleet Street, Carlton (Lot 1 DP 921700). 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 19 June 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment. 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. The application is made pursuant to the provisions of the 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 600m of the entry to the Allawah Railway Station, meeting the requirement at cl 4(b) of SEPP ARH. 3. The proposed development is compliant with the development standards at cll 30 and 30AA of SEPP ARH. 4. 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. 5. 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. 6. A BASIX certificate has been provided to satisfy the requirement in Schedule 1 of the Regulation 2000 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. Pursuant to the Rockdale Local Environmental Plan 2011 the subject site is zoned R2 Low Density Residential. I have had regard to the objectives of the zone in determining the application. 8. The proposed development does not contravene any development standard in LEP 2011. 9. Clause 6.1: Acid sulfate soils in LEP 2011 applies to the site as it is identified as containing Class 5 soils. I am satisfied that any excavation for buildings will not result in the lowering of the water table. Clause 6.1(3) of LEP 2011 is satisfied. 10. Clause 6.2: Earthworks in LEP 2011 applies to the development proposed. In granting consent to the development, I have given consideration to the matters listed at cl 6.2(3) of LEP 2011. 11. Clause 6.7: Stormwater applies to the development proposal which is supported by stormwater engineering plans. I am satisfied that the requirements in cl 6.7(3) of LEP 2011 are met. 12. 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. 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 on the amended plans listed in condition 2 of the conditions at Annexure A to this agreement. 2. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of these orders. 3. The appeal is upheld. 4. Development application no. DA 2019/250, as amended, for the demolition of existing structures and construction of a two-storey boarding house comprising 8 single rooms at 9 Fleet Street, Carlton is approved subject to the conditions of consent at Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (267658, 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: 27 August 2020