Land and Environment Court New South Wales Medium Neutral Citation: Rod Zoby Group Pty Ltd trading as ZTA Group v Canterbury-Bankstown Council [2020] NSWLEC 1464 Hearing dates: Conciliation conference on 7 September 2020 Date of orders: 06 October 2020 Decision date: 06 October 2020 Jurisdiction: Class 1 Before: O'Neill C Decision: The Court orders: (1) The applicant is granted leave to amend the application to rely upon the following amended or additional plans and documents: a) DA 00 issue E dated 3 September 2020 b) DA 01 issue E dated 3 September 2020 c) DA 02 issue E dated 3 September 2020 d) DA 03 issue E dated 3 September 2020 e) DA 04 issue E dated 3 September 2020 f) DA 05 issue E dated 3 September 2020 g) DA 06 issue E dated 3 September 2020 h) DA 07 issue E dated 3 September 2020 i) DA 08 issue E dated 3 September 2020 j) DA 09 issue E dated 3 September 2020 k) DA 10 issue E dated 3 September 2020 l) DA 11 issue B dated 3 March 2020 m) DA 12 issue B dated 3 March 2020 n) DA 13 issue B dated 3 March 2020 o) DA 14 issue B dated 3 March 2020 p) DA 15 issue B dated 6 August 2020 q) DA 16 issue E dated 3 September 2020 r) DA 17 issue E dated 3 September 2020 s) DA 17.1 issue E dated 3 September 2020 t) DA 18 issue D dated 5 August 2020 u) Landscape plan 1874.GD.01 issue B 8 September 2020 v) BASIX certificate 1092950M_03 dated 8 September 2020 (2) The appeal is upheld. (3) Development Application No. 229/2018 for the demolition of an existing dwelling and construction of a two-storey boarding house development consisting of nine rooms, inclusive of one accessible room, and basement parking, at 5 McPherson Avenue, Punchbowl, is approved, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Bankstown Local Environmental Plan 2015 Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 — Design Quality for Residential Apartment Development Cases Cited: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Category: Principal judgment Parties: Rod Zoby Group Pty Ltd trading as ZTA Group (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Shneider (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Houston Dearn O'Connor Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2019/324832 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 229/2018 for a two storey boarding house containing 13 boarding rooms (including an accessible room and a manager's room) (the proposal) at 5 McPherson Avenue, Punchbowl (the site) by Canterbury-Bankstown Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 September 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. 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. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The site 1. The site has a street frontage of 15.24m and an area of 557sqm. Jurisdictional prerequisites 1. The site is zoned R3 Medium Density Residential pursuant to Canterbury Local Environmental Plan 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R3 zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The application is made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 2. Clause 4.1C of LEP 2012 is a minimum lot size development standard for boarding house developments. Clause 4.1C includes a minimum lot size of 1000sqm and frontage of 20m for a boarding house in the R3 zone. Clause 4.1C has the following objectives: (a) to ensure that lots for boarding houses are of sufficient size to accommodate boarding houses, setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas, (b) to minimise any likely adverse impact of the development on the amenity of the area, (c) to require the consolidation of 2 or more lots, where an existing lot is inadequate in terms of its area or width. 1. The provisions for boarding houses are under Part 3 of SEPP ARH. Clause 30 includes mandatory standards for boarding houses and the proposal meets those standards. I am satisfied that the design of the proposal is compatible with the character of the local area, pursuant to cl 30A of SEPP ARH, because the two-storey, hipped roofed proposal in a garden setting has a domestic character and is consistent with the medium density residential scale of the locality. 2. Clause 4.1C was inserted into LEP 2012 as part of the amending LEP which commenced on 20 September 2019. The amending LEP contained a savings provision at cl 1.8(2) for development applications made but not finally determined, requiring those applications to be determined and have effect as if the amending LEP had not been made. The development application was lodged on 31 May 2018 and is caught by the savings provision. As the amendment to LEP 2012 is now in force, the consent authority, or the Court exercising the functions of the consent authority, is entitled to regard the provision as certain, but any operative prohibition as set aside (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289). I am satisfied that the proposal is appropriately proportionate to the site and therefore, that the site is of a sufficient size to accommodate this proposal, with adequate setbacks to adjoining residential land, private open space and landscaped areas, driveways and vehicle manoeuvring areas. I am satisfied that the proposal has minimised any adverse amenity impacts on the locality because the bulk and scale, and the siting of the building, is consistent with development in the R3 zone. 3. There is a draft LEP which has been exhibited and proposes to consolidate the LEP 2012 and the Bankstown Local Environmental Plan 2015. The draft LEP proposes to insert a new cl 1.9(1A) to require State Environmental Planning Policy No 65—Design Quality for Residential Apartment Development (SEPP 65) to apply to boarding houses, which is consistent with the application of SEPP 65 at cl 4(4), which states that SEPP 65 does not apply to a boarding house unless a LEP states otherwise. As the draft LEP will state otherwise, when made, it will apply to boarding houses that meet the minimum requirements for the application of SEPP 65 at cl 4(1). However, as the proposal is two storeys, and the basement is less than 1.2m above ground level, SEPP 65 would not apply to the proposal, at cl 4(1)(b), if the LEP had been made. 4. The draft LEP includes a proposed design quality clause at cl 6.14. The objective of cl 6.14 is to ensure that development achieves good urban design and supports quality places for people. Clause 6.14 includes a mandatory list of qualitative standards for the consideration of the consent authority, at sub-cl (3)(a). I have considered the qualitative standards relevant to the proposal and I am satisfied that the proposal is appropriately sited and of a scale to achieve good urban design. 5. I am satisfied by the Council's submissions that the contentions raised have been adequately addressed by the amendments made to the proposal and the imposition of conditions of consent. Orders 1. The orders of the Court are: 1. The applicant is granted leave to amend the application to rely upon the following amended or additional plans and documents: 1. DA 00 issue E dated 3 September 2020 2. DA 01 issue E dated 3 September 2020 3. DA 02 issue E dated 3 September 2020 4. DA 03 issue E dated 3 September 2020 5. DA 04 issue E dated 3 September 2020 6. DA 05 issue E dated 3 September 2020 7. DA 06 issue E dated 3 September 2020 8. DA 07 issue E dated 3 September 2020 9. DA 08 issue E dated 3 September 2020 10. DA 09 issue E dated 3 September 2020 11. DA 10 issue E dated 3 September 2020 12. DA 11 issue B dated 3 March 2020 13. DA 12 issue B dated 3 March 2020 14. DA 13 issue B dated 3 March 2020 15. DA 14 issue B dated 3 March 2020 16. DA 15 issue B dated 6 August 2020 17. DA 16 issue E dated 3 September 2020 18. DA 17 issue E dated 3 September 2020 19. DA 17.1 issue E dated 3 September 2020 20. DA 18 issue D dated 5 August 2020 21. Landscape plan 1874.GD.01 issue B 8 September 2020 22. BASIX certificate 1092950M_03 dated 8 September 2020 1. The appeal is upheld. 2. Development Application No. 229/2018 for the demolition of an existing dwelling and construction of a two-storey boarding house development consisting of nine rooms, inclusive of one accessible room, and basement parking, at 5 McPherson Avenue, Punchbowl, is approved, subject to the conditions of consent at Annexure A. ______________ Susan O'Neill Commissioner of the Court Annexure A (274781, 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: 06 October 2020