Land and Environment Court New South Wales Medium Neutral Citation: Signature Properties No 5 Pty Ltd v Penrith City Council [2021] NSWLEC 1265 Hearing dates: Conciliation conference on 6 May 2021 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application DA20/0483 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked 'A'. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the DA, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000. (3) The appeal is upheld. (4) The DA for the construction of a two-storey boarding house with thirteen (13) boarding rooms and three (3) at grade car parking spaces, including associated site landscaping at 3 Edward Street, Kingswood (legally known as Lot 36 in Deposited Plan 237831) is approved subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 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: Signature Properties No 5 Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: S Belle (Solicitor) (Applicant) A Avery (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Penrith City Council (Respondent) File Number(s): 2020/285011 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Signature Properties No 5 Pty Ltd (Applicant) against the Respondent's refusal of their development application DA20/0483. The amended development application seeks consent for the construction of a two-storey boarding house development with thirteen boarding rooms, three at grade car spaces and associated site landscaping. The development is proposed at 3 Edward Street, Kingswood (Lot 36 DP 237831). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 6 May 2021. Prior to the conciliation, the Applicant prepared amended plans. At the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the Applicant be granted leave to rely on the amended plans and the appeal is upheld, subject to the conditions of consent annexed to this judgment. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Consent for the development application has been provided by the owners of the land. 2. The application was notified in accordance with the relevant development control plan and I have considered the submissions in determining the development application. I note that the parties have agreed on a number of amendments, in part in response to concerns raised by local residents. 3. Pursuant to the Penrith Local Environmental Plan 2010 (LEP 2010), the subject site is zoned R3 Medium Density Residential. Boarding houses are permissible in the zone. In determining the development application, I have had regard to the objectives of the zone. 4. The development application complies with the development standard for maximum height in LEP 2010. 5. Whilst the site is not identified as 'Flood Planning Land' on the Clause Application Map, the site is affected by local overland flow flooding. I find that the development meets the states of satisfaction required by cl 7.2(4) of LEP 2010 as the proposed development will achieve 0.5m freeboard above the 1% AEP flood level. Further, as required by cl 7.2(5) of LEP 2010, I am satisfied that the development will not adversely affect the safe and effective evacuation of the land and the surrounding area. 6. I am satisfied that the development has been designed with adequate regard to sustainable development as required by cl 7.4 of LEP 2010. 7. The subject site is identified on the Salinity Potential in Western Sydney Map 2002. As required, I have given consideration to the matters listed at cl 7.6(2) of LEP 2010. Given the limited site disturbance proposed, I am satisfied the development is acceptable. 8. As required by cl 7.7 of LEP 2010, I am satisfied that the subject site is connected to reticulated water supply, has adequate facilities for the removal and disposal of sewerage and that the need for public amenities and facilities will be met by the imposition of conditions of consent requiring contributions to be paid in accordance with the relevant development contributions plan. 9. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept that the likelihood of contamination is low. 10. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 11. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as a boarding house. The division applies to the site as the site is zoned R3 Medium Density Residential development and is within an accessible area: cl 27 of SEPP ARH. 12. The development is compliant with each of the standards at cl 30 of SEPP ARH. 13. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area. 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 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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend Development Application DA20/0483 (the DA) to rely on the plans and documents referred to in Condition 1 of the conditions annexed and marked 'A'. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment to the DA, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $5,000. 3. The appeal is upheld. 4. The DA for the construction of a two-storey boarding house with thirteen (13) boarding rooms and three (3) at grade car parking spaces, including associated site landscaping at 3 Edward Street, Kingswood (legally known as Lot 36 in Deposited Plan 237831) is approved subject to the conditions set out in Annexure 'A'. ………………………… D M Dickson Commissioner of the Court Annexure A (288805, 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: 20 May 2021