Saade v Strathfield Municipal Council [2021] NSWLEC 1206

Land and Environment Court New South Wales

Medium Neutral Citation: Saade v Strathfield Municipal Council [2021] NSWLEC 1206 Hearing dates: Conciliation conference on 21 January 2021, 9 and 23 February 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [14] Catchwords: DEVELOPMENT APPLICATION – boarding house – breach of LEP height standard – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Strathfield Local Environmental Plan 2012 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 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020) Category: Principal judgment Parties: Samir Saade (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2020/250687 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Strathfield Municipal Council (Council) of Development Application No DA2020/106 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 923m2 parcel of land identified as Lot 10 in DP 827 at 14 Marlborough Road, Homebush West (the site). The DA as submitted to the Council on 16 June 2020 sought consent for demolition of the existing dwelling and the construction of a five storey boarding house containing fifty-five (55) rooms, including one manager's room, over two basement levels. The DA was exhibited between 29 June 2020 and 20 July 2020, with 19 submissions received during the exhibition period. 3. On 28 August 2020 the Applicant lodged this Class 1 Appeal with the Court. On 21 October 2020 the Court granted leave to the Applicant to amend the application in accordance with the Notice of Motion filed on 2 October 2020. The amended proposal was re-notified and re-advertised for a period of 21 days, ending on 16 November 2020, resulting in 11 submissions. On 18 November the Council filed its Statement of Facts and Contentions (SOFC). 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 21 January 2021, 9 and 23 February 2021. The proceedings commenced with a site view attended by me and representatives of the parties. Due to the Court's COVID-19 Pandemic Arrangements Policy (December 2020) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, oral submissions from objectors were taken by telephone, after the site view and prior to commencement of the conference. 5. Further amendments to the architectural plans, prepared by Urban Link Revision D dated 1 February 2021, (the final plans) were then made to address the matters raised in the SOFC, concerns raised by Council during the s34 conference and in the public submissions. The parties advised the Court that they had reached an agreement and provided to the Court a copy of that agreement along with draft conditions on 23 February 2021. On 24 February 2021 sets of the architectural, landscape and engineering (stormwater) plans, and a revised clause 4.6 variation request to the building height standard were filed with the Court. Further minor changes to the agreement and draft conditions were made in response to a query from the Court regarding decontamination measures. A final s34 agreement, including conditions of consent at Annexure A, was filed with the Court on 14 April 2021. 6. The main changes between the original plans filed with the Class 1 Application to the Court and the final plans the subject of the s34 agreement are: 1. From ground level and above the building has been split into two separate buildings and all floor plans amended to reorient some rooms and minimise the number of rooms facing the adjoining residential units to the north. 2. The outdoor communal open space and associated communal lounge previously located on Level 4 have been relocated to the ground level. A second, smaller outdoor communal open space and communal lounge have been introduced on the lower ground level at the rear of the site. 3. The number of boarding rooms (excluding manager's room) has been reduced from 54 to 51, the gross floor area (GFA) has reduced from 1,792m2 to 1,729m2, the floor space ratio (FSR) has reduced from 1.94:1 to 1.87:1 and the number of parking spaces has reduced from 28 to 27. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.