Land and Environment Court New South Wales Medium Neutral Citation: State Projects Pty Ltd v Georges River Council [2021] NSWLEC 1071 Hearing dates: Conciliation conference on 2 February 2021, final agreement filed 27 January 2021 Date of orders: 17 February 2021 Decision date: 17 February 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to rely on the amended plans and documents referred to in Condition 1 of the conditions of consent at Annexure 'A'. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the agreed amount of $9,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 by 19 February 2021. (3) The appeal is upheld. (4) Development Consent be granted to DA2018/0190 for the demolition of existing structures and construction of a two-storey boarding house, comprising 17 rooms and 9 car spaces at 3 Newman Street, Mortdale NSW, subject to the conditions of consent at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – boarding house – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land 1998 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: State Projects Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: S Kaoutarani (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/119104 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA2018/0190 (DA). The DA sought consent for demolition of existing structures and the construction of a two storey boarding house containing 19 rooms over basement car parking (the proposal) at 3 Newman Street, Mortdale (the site) by Georges River Council (the Respondent). 2. The matter was initially listed before me for hearing on 2 and 3 February 2021. However, on the application of the parties, the hearing was adjourned and the matter reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 2 February 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. Whilst the amended proposal remains largely consistent with the original proposal - being for demolition of existing structures and construction of a two-storey boarding house, comprising 17 rooms and 9 car spaces - a series of minor amendments cumulatively resolve the contentions raised by the Respondent, which related primarily to density and scale, local character, and landscaping amongst other contentions. 6. In summary, the agreed amendments have the effect of reducing the scale and density of the proposal and thereby its relationship to the immediate content, increasing the extent of landscape area and improving internal amenity and privacy benefiting both the subject site and immediate neighbours. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, the parties agree, and I am satisfied, evidence of owner's consent has been provided with documentation accompanying the Class 1 appeal. 10. The Hurstville Local Environmental Plan 2012 (HLEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the amended proposal, characterised as a boarding house, is permissible with consent. 11. I am satisfied the amended proposal meets the R2 zone objectives set out at cl 2.3 of the HLEP because it provides for affordable accommodation in a low density residential environment. 12. The amended proposal is consistent with all relevant development standards set out within the HLEP, specifically the maximum height of building and maximum floor space ratio. 13. The parties agree, and I am satisfied, essential services are available for the development, or adequate arrangement have been made to provide them, as required by cl 6.7 of the HLEP 14. The parties agree, and I am satisfied, a BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 15. Since the amended proposal is a boarding house on land zoned R2 Low Density Residential, the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply. 16. The parties agree, and I am satisfied, the amended proposal meets each of the standards set out in cl 30(1) of the SEPP ARH. 17. The development application was lodged with the Respondent on 15 May 2018. Hence cl 30AA of SEPP ARH, which came into effect on 28 February 2019 does not apply to the amended proposal as set out saving provisions at cl 54C of SEPP ARH. 18. The parties agree, and I am satisfied, the amended proposal will result in a development compatible with the character of the local area, as required by cl 30A of SEPP ARH. 19. I am satisfied State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes not typically associated with activities that might result in contamination of the land. As such, I am satisfied cl 7 of SEPP 55 has been satisfactorily addressed. 20. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the amended proposal is in the public interest. 21. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the amended plans and documents referred to in Condition 1 of the conditions of consent at Annexure 'A'. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application in the agreed amount of $9,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 by 19 February 2021. 3. The appeal is upheld. 4. Development Consent be granted to DA2018/0190 for the demolition of existing structures and construction of a two-storey boarding house, comprising 17 rooms and 9 car spaces at 3 Newman Street, Mortdale NSW, subject to the conditions of consent at Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (420303, 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 February 2021