Land and Environment Court New South Wales Medium Neutral Citation: Umbrella Group Pty Ltd v Fairfield City Council [2020] NSWLEC 1569 Hearing dates: Conciliation conference on 27 October 2020 Date of orders: 19 November 2020 Decision date: 19 November 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders at [9] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline Category: Principal judgment Parties: Umbrella Group Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/399519 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Fairfield City Council's deemed refusal of Development Application No. 372.1/2018 ('DA'). 2. The DA, with modifications incorporated into amending plans, seeks consent for the demolition of existing structures and the construction of two x two storey buildings used for the purposes of a boarding house comprising a total of 24 boarding rooms, at 6 Carramar Avenue, Carramar, legally identified as Lot 12 in Deposited Plan 211225. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 ('LEC Act'), which was held on 27 October 2020, and at which I presided. After the conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (oral submissions, note titled: "Jurisdictional Matters about which the Court must be satisfied" and provided to the Court by email received 27 October 2020, and email advice to the Court received 6 November 2020). Regarding jurisdiction, and noting this advice, I am satisfied of the following: 1. The proposal is permissible under Fairfield Local Environmental Plan 2013 ('LEP'), with boarding houses permissible in the R2 Low Density Residential zone that applies to the site. I note here that I have had regard to the objectives of this zone as required under cl 2.3(2) of the LEP. Demolition is permissible under cl 2.7. 2. The proposal complies with both floor space ratio ('FSR') and building height controls in the LEP. 3. The proposal is in the vicinity of heritage items listed in the LEP. Mindful of cl 5.10(4) of the LEP, I have considered the effect of the proposed development on the heritage significance of the items and agree with the Council that there is no significant adverse effect on the heritage significance of the items. 4. The parties advise that the essential services identified in cl 6.9 of the LEP are available or that adequate arrangements have been made to make them available when required. I accept this advice and am satisfied in regard to the requirements of this LEP provision. 5. I accept the advice of the parties that, in regard to the LEP, no other jurisdictional provisions apply in this matter. 6. State Environmental Planning Policy (Affordable Rental Housing) 2009 ('SEPP') applies to the site under cl 26 of the SEPP. 7. I accept the advice of the parties that the development standards contained at cl 30 of the SEPP have been complied with. The advice relevantly includes the following matters: 1. More than the required number of communal living rooms are provided; 2. No boarding room has a GFA of more than 25sqm; 3. No boarding room will be occupied by more than 2 lodgers; 4. Bathroom and kitchen facilities are provided within each boarding room; 5. A managers room is provided; and 6. At least one parking space for a bicycle and motorcycle, for every 5 boarding rooms is provided – 5 bicycle and 5 motorcycle spaces. 1. Council has considered whether the subject site is contaminated mindful of cl 7(1)(a) of State Environmental Planning Policy No 55 – Remediation of Land. Council advises that the long term use of the site is for residential purposes. It advises that the subject site is not likely to be contaminated, and as such there is no further role for cl 7(1). I am satisfied that due consideration has been given under cl 7(1)(a) and that the further provisions of cl 7(1) do not trigger. 2. State Environmental Planning Policy (Infrastructure) 2007 ('SEPP Infrastructure') applies in respect of two matters. Firstly, the site is adjacent to a rail corridor. Council advises that written notice of the proposal was given to Sydney Trains in accordance with cl 85 and that consideration has been given to the response. Mindful of cl 85(2)(a)(i), I also take into consideration this advice and note the inclusion of conditions referencing requirements of Sydney Trains. I note Condition 88 references a requirement for the proposal to comply with the deemed-to-satisfy provisions in the Department of Planning's document: "Development Near Rail Corridors and Busy Roads - Interim Guideline". This is a guideline "fulfilling the purpose" of cl 85(2)(b)(ii), and thus the requirements of this subclause have been taken into consideration. Secondly, the proposal involves development within 5m of an exposed overhead electricity power line (cl 45(1)(b)(iii)). The parties advise that the electricity supply authority for the area is Endeavour Energy. Council has notified Endeavour Energy and have advise of consideration of its response. Mindful of cl 45(2)(b), I also take into consideration this response and note the inclusion of conditions referencing requirements of Endeavour Energy (condition 38A). 3. An amended BASIX Certificate has been provided by the Applicant to accompany the development application to satisfy the requirement in Schedule 1 of the Environmental Planning and Assessment Regulation 2000. 4. Mindful of s 4.15(1)(d) of the EPA Act, I have been advised of the submissions made in regard to the proposal. It evident to me that these submissions have been taken into consideration by Council, noting the scaling back of the proposal. In turn I can note that I have also given consideration to these submissions. 1. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 3. The Court orders: 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 Site Plan A1-1.01 J 26/10/2020 Ridge Designs Demolition Plans, Roof Plan and Fence Detail A1-1.02 I 11/09/2020 Ridge Designs Floor Plans A1-1.03 J 26/10/2020 Ridge Designs Elevations and Sections A1-1.04 I 11/09/2020 Ridge Designs Communal Open Space A1-1.06 H 24/08/2020 Ridge Designs Cross Ventilation and Solar Access A1-1.07 J 26/10/2020 Ridge Designs Privacy Plan and Elevation A1-1.08 H 24/08/2020 Ridge Designs Calculation Table A1-1.09 J 26/10/2020 Ridge Designs Finishes Schedule Undated Ridge Designs Landscape plans DA Landscape Concept 5129 I 21 September 2020 Monaco Designs Pty Ltd Stormwater plans Stormwater Concept Plan – sheet 1 101 J 8 October 2020 Australia Consulting Engineers Stormwater Concept Plan – sheet 2 102 J 8 October 2020 Australia Consulting Engineers On site detention details and calculation sheets 103 J 8 October 2020 Australia Consulting Engineers Miscellaneous details sheet 104 J 8 October 2020 Australia Consulting Engineers Reports Acoustic Report Ref No. 2018-223 Rev.3 prepared by Acoustic Vibration & Noise Pty Ltd dated 1 August 2020 Amended Operational Plan of Management dated 16 October 2020 Letter of compliance in relation to car park prepared by Hemanote Consultants dated 27 July 2020 BASIX Certificate no. 935072M_02 dated 9 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 $6,000 within 28 days or orders being made approving the Development Application. 2. The appeal is upheld. 3. Development Consent is granted to Development Application No. 372.1/2018 for the demolition of existing structures and construction of two, two-storey buildings used for the purposes of a boarding house comprising a total of 24 boarding rooms at 6 Carramar Avenue, Carramar, subject to conditions contained in Annexure A. .………………………… P Walsh Commissioner of the Court Annexure A (301025, pdf) Architectural Plans (6040807, pdf) Landscape Plan (1394760, pdf) Finishes Schedule (2862768, jpg) ********** 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: 19 November 2020