Church Block Pty Ltd v Maitland City Council [2020] NSWLEC 1479

Land and Environment Court New South Wales

Medium Neutral Citation: Church Block Pty Ltd v Maitland City Council [2020] NSWLEC 1479 Hearing dates: Conciliation conference on 25 and 27 August 2020 Date of orders: 13 October 2020 Decision date: 13 October 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [18] Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Maitland 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 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Category: Principal judgment Parties: Church Block Pty Ltd (Applicant) Maitland City Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicant) K Mortimer (Solicitor) (Respondent)

Solicitors: Wilshire Webb Staunton Beattie (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/105347 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Maitland City Council (Council) of development application, DA 18-1761 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 815.7m2 parcel of land at 85 Church Street, Maitland being Lot 2 in DP736275 (main site) and the neighbouring Caledonian Hotel land being Lot 1 in DP 736275 and Lot 1 in DP 55029 (Hotel site). The main site has two existing development consents (DA48/79 and DA66/88) which require the provision of 6 parking spaces for the hotel. The site is devoid of any structures and is currently used for parking associated with the hotel. 3. The DA, as originally lodged with the Council on 12 September 2018, sought consent for the construction of a four storey boarding house on the main site, containing 28 rooms, manager's office and undercroft parking for 15 cars. Consent was also sought for the demolition of a shed at the rear of the Caledonian Hotel (on the Hotel site) and replacing it with 6 at-grade car spaces. The DA as originally submitted was based on architectural plans prepared by Bechara Architects dated 15 March 2019. 4. The DA was advertised from 24 September 2018 to 8 October 2018. Fifteen submissions by way of objection were received. The applicant subsequently amended the application and the amended application was renotified between 3 June 2019 and 17 June 2019. Twelve submissions objecting to the DA were received in response, one of which was subsequently withdrawn. Council refused the DA on 8 October 2019. 5. The applicant filed the Class 1 Application with the Court on 7 April 2020. On 5 June 2020 the Council filed with the Court its Statement of Facts and Contentions (SOFC), detailing five matters in contention. 6. The Court arranged two conciliation conferences under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided at both conferences. 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 conferences. The first conciliation conference was terminated on 30 July 2020 in circumstances where the parties failed to reach an agreement. The second conciliation conference was held on 25 and 27 August 2020. 7. In response to the SOFC and as a result of the discussions at the first conciliation conference, amended plans prepared by Bechara Architects dated 22 July 2020 (final amended plans) were submitted to Council and formed the basis of the s34 agreement that was filed with the Court on 7 September 2020. 8. The main changes between the original DA plans and the final amended plans the subject of the s34 agreement can be summarised as: 1. The building's street frontage setback has increased from 1.5m to 5.5m, and landscaping increased. 2. The Ground Level has been reconfigured to 1. remove from the rear of the building the manager's office and associated private open space, and the common room and its associated communal open space (all of which have been relocated to Level 3), 2. to introduce a new entry lobby at the street frontage (south west corner of the building), and 3. to provide additional landscaping. 1. One of the centrally located north-facing rooms on both Levels 1 and 2 has been removed. 2. Level 3 has been replanned to replace the two "attic" rooms accessed by stairs with a new level accessed by lift. The revised Level 4 contains 4 rooms (to replace those removed from Levels 1, 2 and 3), and the manager's room and common room relocated from Ground level. The manager's private open space and the Communal Open Space are also relocated to this level in the form of an outdoor terrace. 3. All elevations have been amended to reflect the floor plan changes and to improve the impact on the Maitland Heritage Conservation Area, of which it is a part, and in particular the streetscape presentation of the development, including the screening of the Ground Level parking area when viewed from the public domain. 1. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. 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. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in paragraphs 10 to 17 below. 2. The Maitland Local Environmental Plan 2011 (MLEP) is the relevant local planning instrument applying to the land the subject of the DA (both the main site and the Hotel site). I am satisfied that the development is for the purposes of a "boarding house" and parking which are permissible with consent in the B4 Mixed Use Zone (B4 Zone) applying to the sites, and that the development meets the objectives of the B4 Zone found at cl 2.3 of the MLEP. No maximum height of buildings or floor space ratio (FSR) development standards apply under the MLEP and therefore the DA does not require approval of any clause 4.6 variations to development standards. 3. The land the subject of the DA is within the Central Maitland Heritage Conservation Area (HCA). The effect of the proposed development on the heritage significance of the HCA has been considered as required by cl 5.10(4) of the MLEP. 4. The land the subject of the DA is within a Class 5 Area as specified in the Acid Sulphate Soils Map. The parties have confirmed they are satisfied the proposed works are not likely to lower the water table below 1.0m Australian Height Datum (AHD) on any land within 500m of a Class 1, 2 or 3 land classification. As a result, no preliminary assessment is required and the requirements of cl 7.1 of the MLEP are satisfied. 5. The proposed development involves minimal earthworks and the parties have confirmed they are satisfied that due consideration has been given to the matters required by cl 7.2 of the MLEP. 6. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies to the subject development. The parties have confirmed they are satisfied that the proposed development complies with the relevant standards set out in cl 30 of the SEPP ARH. The parties are also satisfied that the final amended plans result in a development that is compatible with the character of the local area, as required under cl 30A of the SEPP ARH. 7. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requires consideration of any contamination and associated remediation. An Environmental Site Assessment Report (ESA Report) prepared by ERNS Pty Ltd dated 6 July 2018 was submitted by the applicant. The ESA Report confirms that the main site is suitable for the proposed residential use. The parties have confirmed they are satisfied that the main site does not, therefore, require further consideration under cl 7 of SEPP 55. 8. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a Certificate number 1125395M dated 20 August 2020 has been provided demonstrating compliance with the BASIX SEPP. 9. 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. 10. The Court orders: 1. The Applicant is granted leave to amend development application DA2018/1761 to rely upon the following plans and documents: 1. Site/Roof Plan, Drawing No A00, Revision I, dated 22 July 2020, 2. Ground & Level 1 Plans, Drawing No A01, Revision Q, dated 27 August 2020, 3. Level 2 & 3, Drawing No A02, Revision L, dated 26 August 2020, 4. Sections & Street Elevation, Drawing No A03, Revision K, dated 22 July 2020, 5. Elevations, Drawing No A04, Revision M, dated 26 August 2020, 6. Ongoing Waste Management Plan, Drawing No A06, Revision F, dated 29 July 2020, 7. Landscape Plan 01, Drawing No LP01, Issue E, dated 22 July 2020, 8. Landscape Plan 02, Drawing No LP02, Issue E, dated 22 July 2020, 9. BASIX Certificate No. 1125395M, dated 20 August 2020, pages 1 – 15, 10. Letter from Transport and Traffic Planning Associates dated 5 July, Ref: 374/2020, including SP 1 – SP 8, 11. BCA Compliance Statement prepared by Peter Dix dated 27 August 2020. 1. The Applicant is to pay the Respondent's costs thrown away as a consequence of the amendments pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 in the sum of $18,500.00, to be paid within 28 days of the date of these orders. 2. The appeal is upheld. 3. Development consent is granted to development application DA2018/1761 for a proposed boarding house with 28 self-contained boarding rooms at 85 Church Street Maitland (Lot 2 DP 736275) and six (6) hotel car parks on Lot 1, DP 55029 and Lot 1, DP 736275, subject to the conditions of consent set out in Annexure 'A'.