Land and Environment Court New South Wales Medium Neutral Citation: Amez Pty Ltd v Blacktown City Council [2020] NSWLEC 1682 Hearing dates: Conciliation conference on 22 December 2020 Date of orders: 24 December 2020 Decision date: 24 December 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See paragraph [11] Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation – agreement between the parties - orders Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 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 No 55 – Remediation of Land Category: Principal judgment Parties: Amez Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: M Staunton (Applicant) P McEwen SC (Respondent) Solicitors: Mills Oakley (Applicant) Bartier Perry (Respondent) File Number(s): 2019/340684 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal of Development Application No. DA-19-00414 for demolition of the existing dwelling and ancillary structures and the construction of a 5-storey boarding house comprising of 46 boarding rooms, manager's room, 2 levels of basement carparking and associated landscaping and site works on the land being Lot 170 in Deposited Plan 13619 known as 35 Carinya Street Blacktown (Site). 2. On 22 December 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application (Amended DA) and to grant development consent. 4. On 22 December 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council's contentions. 6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant development consent. The parties have identified the jurisdictional matters about which I need to be satisfied and provided a comprehensive Joint Statement which is Attachment 1 hereto. I concur with the parties' Statement and I am satisfied as to the jurisdictional matters having regard to the documents which have been provided to the Court. 8. In particular, I note: 1. The Site is zoned R4 High Density Residential under Blacktown Local Environmental Plan 2015 (BLEP 2015) and the proposed boarding house development is permissible with development consent. 2. The Amended DA generally complies with the requirements under the BLEP 2015 subject to conditions of consent, including: 1. Clause 2.3 - Zone objectives and Land Use Table; regard has been had to the objectives of the R4 High Density Residential Zone (Page 48 of SEE dated March 2019); 2. Clause 4.3 – Height of buildings; the Site is subject to a 20m maximum building height control and the Amended DA complies with this development standard (North/South Elevations Drawing P11 (Rev P) dated 17 December 2020); 3. Clause 4.4 – Floor Space Ratio, there is no floor space ratio control applicable to the Site; 4. Clause 7.5 – Essential Services; adequate arrangements have been made for the supply of essential services and the disposal and management of sewage (Conditions of Consent 1.4, 3.1.4 and 6.4); 5. Clause 7.7 – Design Excellence; the Amended DA exhibits design excellence (Contention 4, paragraph 5 of Town Planning and Urban Design JER filed 14 December 2020). 1. Clause 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) applies and consideration must be given as to whether the Site is contaminated and, subject to its status of contamination, whether the land is or will be made suitable for the development. 2. A Preliminary Site Investigation has been undertaken by Geotechnical Consultants Australia on behalf of the Applicant dated 18 June 2018 which concluded that potential Asbestos Containing Materials is present on the Site and recommended a detailed site investigation to be carried out. 3. A Detailed Site Investigation has been carried out by Geotechnical Consultants Australia and reported on dated 24 October 2019. The Detailed Site Investigation concluded that traces of asbestos and contaminants were below the screening/investigation levels and that the Site is suitable for proposed development and land use. Accordingly, I am satisfied that the requirements of SEPP 55 are met. 4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) and the Environmental Planning and Assessment Regulation 2000 (Regulation) apply to the proposed development. An updated BASIX certificate (995153M_05) dated 17 December 2020 has been provided in satisfaction of SEPP BASIX. 5. The DA is an application made pursuant to Division 3 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The Respondent is satisfied as to the various jurisdictional matters contained within that policy, including: 1. Clause 30 – the standards for boarding houses are met; 2. Clause 30A - the Amended DA will provide a development that will be compatible with the future character of the area (Contention 2, paragraph 41 of Town Planning and Urban Design JER filed 14 December 2020); 3. The Amended DA complies with the required or minimum provision of parking for cars, motorcycles and bicycles. 1. The development application was notified in accordance with the Council's policy and the submissions received have been taken into account. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act. 3. The Court orders: 1. The Applicant is granted leave to amend Development Application No. DA-19-00414 to rely upon the following amended plans and documents: Plan Reference Issue Prepared by Date Architectural Plans: P000 Cover Page P Designcorp Architects 17 December 2020 P01 Site Data P Designcorp Architects 17 December 2020 P02 LEP Controls P Designcorp Architects 17 December 2020 P03 Site Context Analysis P Designcorp Architects 17 December 2020 P04 Streetscape Analysis P Designcorp Architects 17 December 2020 P05 Demolition Plan P Designcorp Architects 17 December 2020 P06 Roof/Site Analysis P Designcorp Architects 17 December 2020 P07 Basement Floor Plan P Designcorp Architects 17 December 2020 P08 Ground Floor P Designcorp Architects 17 December 2020 P09 Typical 1-2 Floor P Designcorp Architects 17 December 2020 P10 3-4 Floor Plans P Designcorp Architects 17 December 2020 P11 S & N Elevations P Designcorp Architects 17 December 2020 P12 E & W Elevations, 3D Views P Designcorp Architects 17 December 2020 P13 Sections A & B, D & F P Designcorp Architects 17 December 2020 P14 Sections C & D P Designcorp Architects 17 December 2020 P15 Shadow Analysis P Designcorp Architects 17 December 2020 P16 Shadow Analysis P Designcorp Architects 17 December 2020 P17 Accessible Rooms P Designcorp Architects 17 December 2020 P18 Materials and Finishes P Designcorp Architects 17 December 2020 Document Reference Prepared by Date BASIX Certificate No. 995153M_05 Outsource Ideas Pty Ltd 17 December 2020 1. The Applicant is to pay the Respondent's costs thrown away on an as agreed or assessed basis pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development Application No. DA-19-00414, as amended, for demolition of the existing dwelling and ancillary structures and the construction of a 5-storey boarding house comprising of 46 boarding rooms, manager's room, 2 levels of basement carparking and associated landscaping and site works on land identified as Lot 170 in Deposited Plan 13619 and known as 35 Carinya Street Blacktown, is approved subject to the conditions included at Annexure "A". ………………………… P Clay Acting Commissioner of the Court Annexure A (377448, 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: 24 December 2020