Land and Environment Court New South Wales Medium Neutral Citation: Hallani Constructions Pty Ltd v Penrith City Council [2020] NSWLEC 1477 Hearing dates: Conciliation conference on 4, 18 August 2020 and 29 September 2020 Date of orders: 14 October 2020 Decision date: 14 October 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. (2) The appeal is upheld. (3) Development application DA-18/1087 seeking the demolition of existing structures, the removal of trees and the construction of five (5) two-storey townhouses with car parking, associated driveway and ancillary landscaping, fencing and stormwater and drainage works and strata subdivision at premises known as 33 Jones Street, Kingswood is approved subject to the conditions in 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (March 2020) Category: Principal judgment Parties: Hallani Constructions Pty Ltd (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): 2019/382083 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 City Council (Council) of Development Application DA18/1087 (the DA). In exercising the functions of the 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 1,472m2 allotment of land identified as Lot 27 in DP 1087395, at 33 Jones Street, Kingswood (the site). The DA, as originally submitted to Council on 30 October 2018, sought consent for demolition of existing dwelling and associated structures, removal of trees and construction of a multi-unit residential development comprising six two-storey dwellings (in three buildings, each containing two dwellings of three bedrooms), associated drainage and landscaping works, and strata subdivision. Two car spaces were provided for each of the dwellings, one in a garage and one open space at the rear of the garage, and the development included two open visitor spaces. This development proposal is illustrated in the plans prepared by Rafla Arch, Architectural Detailing and Drafting Services dated 24 May 2018. 3. The DA was advertised and notified between 16 and 30 November 2018. No submissions were received at that time. The DA was refused by Council officers under delegated authority on 6 June 2019 and the applicant commenced proceedings in the Court on 4 December 2019. The Council filed its Statement of Facts and Contentions (SOFC) on 21 January 2020 detailing 10 matters of contention. 4. 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 4 and 18 August 2020 and 29 September 2020. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference, at which I presided. 5. As a result of the discussions at the conciliation conference and in response to the matters referred to in the SOFC, amended plans and additional information were submitted to Council and formed the basis of the final s34 agreement that was filed with the Court on 18 September 2020. 6. The main changes between the development as originally submitted to Council and the development the subject of the s34 agreement (illustrated in the Revision C plans dated 27 August 2020, also prepared by Rafla Arch) are: 1. the total number of dwellings has been reduced from 6 to 5, in two sets of pairs and one single dwelling. Two of the 5 dwellings have been reduced in size to now each accommodate 2 bedrooms and a single garage. The remaining three dwellings each have 3 bedrooms and a double garage. The number of visitor spaces has been reduced from two to one; 2. the driveway, which previously connected through to the unformed road at the rear, is now terminated with a turning bay to the south of Unit 5; and 3. the bin storage area has been relocated from the front setback adjacent to the driveway to the northern boundary and setback from the street behind screen landscaping. 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 8 to 11 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 objectives of the B3 Zone at cl 2.3 of PLEP 2010 have been considered and are met by the proposal. 3. The development complies with the minimum lot size requirement of 800m2 at cl 4.1A. It has a site area of 1,472m2. 4. The development complies with the 8.5m maximum height development standard at cl 4.3. It has a maximum height of 6.75m. 5. The development is also satisfactory in terms of other relevant clauses, most particularly cl 7.1 (Earthworks), cl 7.2 (Flood planning), cl 7.4 (Sustainable development), cl 7.6 (Salinity) and 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. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cll 7(1) and (2), requires consideration of any contamination and associated remediation. A late objection to the proposal by a resident objector asserted that the site may have been used in the past as a tannery. A review of Council's records indicated that a tannery had been located in the immediate vicinity of the site as late as 1956. 2. The applicant commissioned a site investigation study "Stages 1 and 2 Site Investigation" prepared by Geotechnique, dated 4 September 2020. The study determined the site is suitable for the proposed residential use. On that basis no further investigation is required at this stage. 3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 971649M_05 dated 20 August 2020 has been provided demonstrating compliance with the BASIX SEPP. 4. 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. 5. The Court orders: 1. The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at condition 1 in Annexure A. 2. The appeal is upheld. 3. Development application DA-18/1087 seeking the demolition of existing structures, the removal of trees and the construction of five (5) two-storey townhouses with car parking, associated driveway and ancillary landscaping, fencing and stormwater and drainage works and strata subdivision at premises known as 33 Jones Street, Kingswood is approved subject to the conditions in Annexure A. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (227000, pdf) Plan (1524944, 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: 14 October 2020