Land and Environment Court New South Wales Medium Neutral Citation: Salimy v Cumberland Council [2020] NSWLEC 1556 Hearing dates: Conciliation conference on 16 October 2020 Date of orders: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] Catchwords: DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55—Remediation of Land Category: Principal judgment Parties: Yousif Al Salimy (Applicant) Cumberland Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Cumberland Council (Respondent) File Number(s): 2019/305444 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Yousif Al Salimy (Applicant) against the Respondent's deemed refusal of their development application DA/193/2019. The development application seeks consent for the demolition of existing structures and the construction of a boarding house comprising 23 rooms, a manager's room and the provision of 13 car parking spaces. The development is proposed at 96 Oramzi Road, Girraween. 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 16 October 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. Pursuant to the Holroyd Local Environmental Plan 2013 (LEP 2013), the subject site is zoned R3 Medium Density Residential. Boarding houses are permissible in the zone and demolition is permissible pursuant to cl 2.7 of LEP 2013. In determining the development application, I have had regard to the objectives of the zone. 2. The development application complies with the development standards for maximum height and floor space ratio in LEP 2013. 3. Clause 6.3 'Essential Services' applies to the site. I am satisfied that services essential for the development are available or that adequate arrangements have been made to make them available when required. 4. Part of the subject site is below the Flood Planning Level and accordingly cl 6.3 of LEP 2013 applies. I am satisfied that the proposed development meets the requirements of cl 6.3(3) of LEP 2013. 5. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at clause 7 of State Environmental Planning Policy 55—Remediation of Land, I accept that the likelihood of contamination is low. 6. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. The application is made pursuant to the provisions of 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 R3 Medium Density Residential and I accept that the subject site meets the definition of 'accessible area' on the basis of the site being 400 metres walking distance of a bus stop used by a regular bus service, as required by SEPP ARH. 8. The development is compliant with the standards at cl 30 of SEPP ARH. 9. 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. 10. 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. Leave is granted to the Applicant to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans Demolition plan Pn_0706, 0101 G 7 September 2020 ADS Architecture Basement 01 Pn_0706, 1101 G 7 September 2020 ADS Architecture Ground floor plan Pn_0706, 1201 G 7 September 2020 ADS Architecture First floor plan Pn_0706, 1301 G 7 September 2020 ADS Architecture Roof plan Pn_0706, 1401 G 7 September 2020 ADS Architecture North and west elevations Pn_0706, 1501 G 7 September 2020 ADS Architecture South and east elevations Pn_0706, 1502 G 7 September 2020 ADS Architecture Streetscape elevation Pn_0706, 1503 G 7 September 2020 ADS Architecture Building sections Pn_0706, 1601 G 7 September 2020 ADS Architecture Landscape plans Landscape plans 19-3940 LO1 - 19-3940 LO2 A 4 September 2020 Zenith Landscape Designs Civil engineering plans Sediment control plan 960RAM-SC-1 A 4 September 2020 Hydraulics Engineer Consultancy Stormwater plans Sheets 1- 4, 2-4, 3-4 and 4-4 D 4 September 2020 Hydraulics Engineer Consultancy Reports Waste Management Plan dated September 2020 Flood study report prepared by Allied Consultants dated June 2020 Acoustic report prepared by Rodney Stevens Acoustics dated 21 July 2020 Plan of management prepared by Andrew Robinson Planning Services Pty Ltd dated July 2020 BCA report prepared by BCA performance dated 24 June 2020 BASIX Certificate no 1006932M_03 prepared by Eco Certificates Pty Ltd dated 21 September 2020 1. The parties agree that the amendments are more than minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979. Accordingly, The Applicant agrees to pay the Respondent's reasonable costs thrown away, agreed at $2,500 within 28 days or orders being made approving the development application. 2. The appeal is upheld. 3. Development Consent is granted to DA-2019/193/1 for the demolition of existing structures and construction of a boarding house comprising 23 rooms and a manager's room at 96 Oramzi Road, Girraween subject to conditions contained in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (360551, 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 November 2020