Land and Environment Court New South Wales Medium Neutral Citation: Van Quan Trinh (Peter) v Fairfield City Council [2020] NSWLEC 1676 Hearing dates: Conciliation conference on 18 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: Refer to orders below at [16] Catchwords: DEVELOPMENT APPEAL – 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 (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Van Quan (Peter) Trinh (Applicant) Fairfield City Council (Respondent) Representation: Counsel: V Trinh (Litigant in person) (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Marsdens Law Group (Respondent) File Number(s): 2020/178191 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 being an appeal against the refusal of development application No. 175.1/2019 which in its original form sought consent for what was described on the development application form as "change of use to boarding house and legalising as built illegal works to class 10A for patio, bbq area, storage and amenities and demolition". The site is legally identified as Lot 2 DP 210228 and known as 33 Bareena Street, Canley Vale, NSW. 2. After termination of an initial round of conferencing between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at the request of the parties, a further conciliation conference was arranged and held on 18 December 2020, at which I presided. 3. At the conciliation conference, the parties outlined their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved seeking leave to rely on amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 4. The development application (as proposed to be amended) would now seek consent for the demolition of the unauthorised dual occupancy, alterations and additions to an existing dwelling house and secondary dwelling, and change of use to a boarding house containing 4 boarding rooms and 1 manager's residence with 3 at-grade car parking spaces, 1 motorcycle space and 2 bicycle spaces. 5. 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. 6. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties provided a statement outlining jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied (received by email dated 21 December 2020). Regarding jurisdiction, and noting this advice, I ultimately find I am satisfied that all jurisdictional requirements have been met. The particulars are explained below. Fairfield Local Environmental Plan 2013 1. Fairfield Local Environmental Plan 2013 applies to the site in accordance with the Land Application Map, and: 1. The site is situated within Zone R2 Low Density Residential. Boarding houses are permissible with consent in Zone R2 Low Density Residential. 2. Demolition is permissible with consent in accordance with cl 2.7. 3. I have had regard to the objectives of Zone R2 Low Density Residential. 4. The proposed development does not contravene the Height of Buildings or Floor Space Ratio controls. 5. The site does not contain a heritage item and is not in a heritage conservation area identified in Schedule 5, and is not in close proximity to any heritage item or heritage conservation area. 6. No earthworks are proposed, and the matters specified in cl 6.2(3) therefore do not arise for consideration. 7. Council advises that the Prospect Creek Flood Study, identified the flood planning level at the site is 7.1m AHD (0.5m above the 6.6m AHD flood level in the closest waterway). The lowest ground level at the site is 8m AHD, which is above the flood planning level. Clause 6.3 only applies to development at or below the flood planning level, and therefore does not apply here. 8. The site is located between the flood planning level and the level of a probable maximum flood and cl 6.4 therefore does apply to the subject development application. Having regard to the Flood Risk Management Report and Flood Evacuation Plan submitted by the Applicant, and the advice of Council I am satisfied that the development will not, in flood events exceeding the flood planning level, affect the safe occupation of, and evacuation from, the land, as required by cl 6.4(3)(h). In accordance with Council's advice, I am satisfied that each of the essential services specified in cl 6.9 are available. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. In regard to cl 30 and boarding house standards: 1. The boarding house contains only 4 boarding rooms (plus 1 manager's residence containing 2 bedrooms), but provides 1 communal living room in any case. 2. None of the proposed boarding rooms have a gross floor area of more than 25m2. 3. None of the boarding rooms are proposed to be occupied by more than 2 adult lodgers. 4. I accept the parties agreement that adequate kitchen and bathroom facilities are available within the development for the use of each lodger. 5. The boarding house does not have the capacity to house 20 or more lodgers, but provides an on site dwelling for a boarding house manager in any case. 6. The site is not primarily zoned for commercial purposes. 7. Only 4 boarding rooms are proposed (plus 1 manager's residence containing 2 bedrooms), but 1 motorcycle parking spaces and 2 bicycle parking spaces are provided in any case. 1. In regard to cl 30AA and boarding houses in Zone R2 Low Density Residential zones: the boarding house does not propose any more than 12 rooms. 2. In regard to cl 30A and character of the local area: I have given consideration to whether the proposed development is compatible with the character of the local area. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. BASIX Certificate No. 1155119S dated 24 November 2020 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. State Environmental Planning Policy No 55—Remediation of Land 1. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of the State Environmental Planning Policy No 55—Remediation of Land. I accept Council's advice that given the long term use of the site for residential purposes, the subject site is not considered likely to be contaminated. Submissions 1. I have discussed the substance of the objections from neighbouring properties with the parties and am satisfied that there has been consideration of submissions in accordance with s 4.15(1)(d) of the EPA Act. Conclusion 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. The Applicant is granted leave to rely on the following amended plans: DWG NO. DESCRIPTION PREPARED BY REV DATE DA 01 Proposed Site Soft Soil Condor Designs Pty Ltd D 03.12.2020 DA 01.1 Autoturn B85 Access + Exit Condor Designs Pty Ltd C++ 03.12.2020 DA 02 Proposed Floor Plan Condor Designs Pty Ltd B++ 03.12.2020 DA03 Proposed West & North Elevations + Section at A Condor Designs Pty Ltd B 03.12.2020 DA 04 Proposed East & South Elevations Condor Designs Pty Ltd B 03.11.2020 DA 05 Roof Plan & Stormwater Drainage Concept Plan Condor Designs Pty Ltd B+ 03.12.2020 DA 06 Ventilation & Solar Access Plan Condor Designs Pty Ltd B++ 03.12.2020 DD 01 Demo Site Plan Condor Designs Pty Ltd B 18.11.2020 DD 02 Demo Floor Plan Condor Designs Pty Ltd A++ 18.11.2020 L01 Landscape Plan & Plant Schedule Leafscape Designs - 03.12.2020 DOCUMENT PREPARED BY REV DATE BASIX Certificate No. 1155119S ESD Energy - 24.11.2020 Plan of Management - 4 21.10.2020 Flood Risk Management Report - - - Flood Evacuation Plan - - - Access Letter Bio-Building Design - 13.10.2020 1. The Applicant is to pay the Respondent's costs "thrown away" as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,500.00 within 28 days of these orders being made. 2. The appeal is upheld. 3. Development Application No. 175.1/2019 for the demolition of an unauthorised dual occupancy, alterations and additions to an existing dwelling house and secondary dwelling and change of use to a boarding house containing 4 boarding rooms and 1 manager's residence with 3 at-grade car parking spaces, 1 motorcycle space and 2 bicycle spaces on the land at 33 Bareena Street, Canley Vale is approved subject to the conditions of consent annexed hereto and marked "A". ………………………. P Walsh Commissioner of the Court Annexure A (261059, pdf) Plans (3580491, 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: 23 December 2020