Land and Environment Court New South Wales Medium Neutral Citation: Genext Penrith Pty Ltd v Penrith City Council [2020] NSWLEC 1563 Hearing dates: Conciliation conference on 30 October 2020 Date of orders: 17 November 2020 Decision date: 17 November 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court Orders that: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure "A". (2) The applicant is to pay the respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,500 within 28 days of the Court's orders. (3) The appeal is upheld. (4) Development Application DA19/0658 for demolition of existing structures and construction of a boarding house at 9 Reddan Avenue, Penrith is approved subject to the conditions at annexure "A". Catchwords: DEVELOPMENT APPEAL – boarding house – compatibile with the character with the local area - 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Environmental Planning and Assessment Regulation 2000 Category: Principal judgment Parties: Genext Penrith Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: A Knox (Solicitor) (Applicant) A Avery (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Penrith City Council (Respondent) File Number(s): 2019/379324 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a development application No. 19/0658 seeking consent for the demolition of existing structures and construction of a boarding house (the Proposed Development) at 9 Reddan Avenue, Penrith, legally described as Lot 55 in DP 29662 (the Site). 2. 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 30 October 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. This decision involved leave being granted to rely on amended plans, costs, the Court upholding the appeal and granting development consent to the development application subject to conditions. 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 parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied as set out below: 1. The development application was made with the consent in writing of the owner of the Site in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation). 2. The Proposed Development for the purposes of a "boarding house" is permissible with consent in accordance with the Land Use Table relating to Zone R3 Medium Density Residential in Penrith Local Environmental Plan 2010 (PLEP 2010). 3. The Proposed Development does not breach or seek to vary any development standard of the PLEP 2010 including height, and the Court notes that there is no floor space ratio development standard for the Site. 4. The Proposed Development is compliant with the applicable development standards pursuant to cll 29 and 30 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 5. The parties are of the view that the Proposed Development is compatible with the character of the local area in accordance with cl30A of SEPP ARH. I accept that compatibility with the character has been considered as required by cl 30A of the SEPP ARH and I agree with the parties as to compatibility for the reason that the development application has been amended resulting in: 1. increased landscaping within the front setback; and 2. reduction of bulk and scale by the deletion of a second storey and the introduction of articulation to the North East of the building. 1. A BASIX Certificate dated 1 October 2020 has been provided in accordance with Schedule 1 of the EP&A Regulation and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 2. Consideration has been given to cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) and due to the history of residential use it is considered unlikely that the Site is contaminated. I have considered the Statement of Environmental Effects (SEE) dated September 2019 and prepared by Alyssa Norton of GAT & Associates Pty Ltd, filed with the Class 1 Application on 2 December 2019, and note that on page 18 at section Part 4.1.1 Ms Norton states: "Clause 7 of the State Environmental Planning Policy No. 55 – Remediation of Land requires Council to consider whether land is contaminated prior to granting consent to the carrying out of any development on that land. … The history of the site indicates a history of residential use. No change is proposed to the residential nature of the land. In accordance with State Environmental Planning Policy No. 55, Council is able to conclude that no further assessment of contamination is necessary." 1. Ms Norton goes on to consider the Draft State Environmental Planning Policy Remediation of Lands 2018 at page 25 of the SEE and provides as follows: "As part of the new SEPP, a provision will be introduced which allows the consent authority to exercise discretion to not require an investigation report if the authority knows that the land is not contaminated or may otherwise be suitable for the use being proposed. The consent authority must have sufficient evidence and/or information in this regard about the land status in order to exercise such discretion. As detailed above under section Part 4.1.2 (sic) of this Statement of Environmental Effects, the history of the site indicates a history of residential use. Therefore, it is not likely that the site has experienced any contamination. As such Council can be confident that the site is (in its current condition) and will be suitable for the proposed development." 1. The development application was notified from 11 October to 25 October 2019. The amended plans and conditions are responsive to concerns raised in those submissions being in relation to the following: 1. Incompatibility with the character of the local area which I accept has been resolved as set out earlier in this judgment at [5(5)]; 2. Negative impacts on amenity which I accept has been resolved by the amended Operational Plan of Management dated 17 September 2020, the introduction of an acoustic wall and the reconfiguration of the rooms including the communal open space; 3. Inadequate infrastructure for waste and stormwater which I accept has been addressed by the Waste Management Plan dated 5 August 2012 and consent Condition 74 requiring a formal agreement to be entered into for the use of Council's Waste Collection Service prior to the issue of any Occupation Certificate. In relation to stormwater I am satisfied that there is sufficient infrastructure as set out in Stormwater plans requiring the Proposed Development to have an on site detention system. 1. Delegation has been granted by the Local Planning Panel to enter into the s34 agreement. 1. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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. 3. The Court orders that: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at annexure "A". 2. The applicant is to pay the respondents costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,500 within 28 days of the Court's orders. 3. The appeal is upheld. 4. Development Application DA19/0658 for demolition of existing structures and construction of a boarding house at 9 Reddan Avenue, Penrith is approved subject to the conditions at annexure "A". ………………………. E Espinosa Commissioner of the Court Annexure A (253738, pdf) Architectural Plans (5448177, pdf) Landscape Plans (1063462, 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: 17 November 2020