Land and Environment Court New South Wales Medium Neutral Citation: Arkibis Pty Ltd t/a Arkhaus v Sutherland Shire Council [2021] NSWLEC 1158 Hearing dates: Conciliation conference on 16 and 30 November 2020, 7 and 21 December 2020, 29 January 2021, and 23 February 2021, final agreement filed 25 March 2021 Date of orders: 30 March 2021 Decision date: 30 March 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) The applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at Condition 1 in Annexure 'A'. (2) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 agreed in the amount of $15,000. (3) The appeal is upheld. (4) Development application DA-20/0154 seeking the demolition of existing structures and construction of a boarding house containing 35 boarding rooms and 1 manager's room over two levels of basement parking at premises known as 108 Flora Street, Sutherland is granted consent subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – boarding house – agreement between the parties – orders Legislation Cited: 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 1998 Sutherland Shire Local Environmental Plan 2015 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Arkibis Pty Ltd t/a Arkhaus (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/126356 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-20/0154 (DA). The DA sought consent for the construction of two additional floors and one additional basement level to an approved boarding house development - with an increase in the number of boarding rooms from 25 to 39 boarding rooms and a manager's room - at 108 Flora Street, Sutherland (the site) by Sutherland Shire Council (the Respondent). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 and 30 November 2020, 7 and 21 December 2020, 29 January 2021, and 23 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 final amended proposal remains broadly consistent with the original development application, a series of amendments cumulatively resolve the contentions raised by the Respondent, which related primarily to streetscape character, height and built form, insufficient side and rear setbacks, and overshadowing impacts amongst other contentions. 6. In summary, the agreed amendments have the effect of reducing the proposed building height by one full storey resulting in a 4, part 5 storey boarding house development. 7. Agreed amendments also improve the siting of the proposal, the provision of deep soil, its relationship to the immediate context, improved internal amenity, reduced overshadowing benefiting both the subject site and its immediate neighbours. 8. 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. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard the parties agree, and I am satisfied, the original DA was made with the consent in writing of the owners of the site, fulfilling the requirements of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 11. The parties agree, and I am satisfied, the DA was amended in accordance with s 55 of the EPA Reg. 12. The parties agree, and I am satisfied, the amended proposal fulfils the requirements of cll 26 and 27(1) of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), which together specify the applicability of land use zoning and development type, being in this matter a boarding house within Zone R4 High Density Residential. 13. The parties agree, and I am satisfied, the amended proposal meets the development standards and non-discretionary standards related to boarding houses at cll 29 and 30 of SEPP ARH. 14. Further, the amended proposal satisfies cl 30A of SEPP ARH because the amended proposal has been properly considered by the parties and found to be compatible with the character of the local area. This compatibility is derived primarily from amendments to the proposed building height, reducing it from 6 storeys to 4, part 5 storeys in height, which is consistent with both the relevant maximum height of building standard of 20m, and the general built form character evident in the vicinity of the site. 15. I am satisfied the Sutherland Shire Local Environmental Plan 2015 (SSLEP) is the relevant environmental planning instrument. The site is zoned R4 High Density Residential, and the amended proposal is permissible with consent. 16. I am satisfied the amended proposal meets the R4 zone objectives set out at cl 2.3 of the SSLEP because it contributes to the provision of housing diversity within a high density residential environment. 17. I am satisfied the amended proposal is consistent with the building height development standard set out at cl 4.3 of the SSLEP of 20m. The amended proposal is for a building height of 14.85m. 18. Similarly, I am satisfied the amended proposal has a resultant Floor Space Ratio (FSR) of 1.58:1, which although exceeding the development standard for FSR set out at cl 4.4 of the SSLEP - being 1.5:1 - is consistent with cl 29(c)(i) of SEPP ARH, which nominates an additional 0.5:1 FSR beyond that established by the SSLEP. 19. I am satisfied the amended proposal includes 51.6% landscaped area and therefore complies with the development standard for landscaped area of 30% at cl 6.14 of the SSLEP. 20. The parties agree, and I am satisfied, the amended proposal meets the required Urban Design considerations at cll 6.16 and 6.17 of the SSLEP because of the reduced bulk, scale and height of the resulting development, its siting, improved communal amenity and increased landscaped area. 21. 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. Appropriate conditions of consent, relating to excavation and fill, are imposed to further meet the objectives of SEPP 55. 22. 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. 23. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the amended proposal may be granted consent, and in considering and responding to submissions from objectors, the final amended proposal is in the public interest. 24. 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 orders of the Court are: 1. The applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at Condition 1 in Annexure 'A'. 2. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning & Assessment Act 1979 agreed in the amount of $15,000. 3. The appeal is upheld. 4. Development application DA-20/0154 seeking the demolition of existing structures and construction of a boarding house containing 35 boarding rooms and 1 manager's room over two levels of basement parking at premises known as 108 Flora Street, Sutherland is granted consent subject to the conditions in Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (286049, pdf) Plans (6328010, 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: 30 March 2021