Land and Environment Court New South Wales Medium Neutral Citation: Krishathi Pty Limited v Blacktown City Council [2021] NSWLEC 1711 Hearing dates: Conciliation conference on 15 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court Orders: (1) The Appeal is upheld. (2) Application DA-21-00559 for the demolition of an existing building, construction of a 2-storey 12 x room boarding house including 11 double lodger rooms and 1 manager's room to accommodate a maximum of 24 persons with basement car park on land legally comprising of the allotment described as Lot 9 DP 26584, known as 227 Bungarribee Road, Blacktown 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: Blacktown Local Environmental Plan 2015, cll 2.7, 7.7 Environmental Planning and Assessment Act 1979 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 55—Remediation of Land Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Category: Principal judgment Parties: Krishathi Pty Limited (Applicant) Blacktown City Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) D Loether (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2021/146822 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 Krishathi Pty Limited (Applicant) against the Respondent's deemed refusal of Development Application No. DA-21-00559 with Blacktown City Council on 1 April 2021. 2. The development application seeks consent for the demolition of an existing dwelling, and subsequent construction of a 2-storey, 12 room boarding house with a basement car park. The development is to be constructed on Lot 9 in Deposited Plan 26584 otherwise known as 227 Bungarribee Road, Blacktown NSW 2148. The development, as lodged, sought accommodation for a maximum of 19 persons including the Onsite Manager. 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 16 August 2021. The parties failed to reach agreement and the conciliation was terminated. 4. The Applicant filed a Notice of Motion, on 10 September 2021, to rely on amended plans. The motion was granted on 21 September 2021. Prior to the hearing, the parties continued to conference based on the amended application. A final package of material, as lodged on the Planning Portal, was filed with the Court on 11 November 2021. Amongst other amendments, the amended development application seeks consent for 24 persons on site, across the 12 boarding rooms. 5. Upon commencing the hearing, the parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. On that basis, the matter was further listed for a s 34 conciliation conference on 15 November 2021. I presided over this conciliation conference. The decision agreed upon by the parties is that the appeal is upheld and the development application is approved, subject to the conditions of consent annexed to this judgment. 6. 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. Pursuant to the Blacktown Local Environmental Plan 2015 (LEP 2015), the subject site is zoned R2 Low Density Residential. Demolition is permissible pursuant to cl 2.7 of LEP 2015. In determining the development application, I have had regard to the objectives of the zone. 2. The application, as a boarding house, is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). Division 3 applies to the site as the site is zoned R2 Low Density Residential: cl 26 of SEPP ARH. 3. I am satisfied that the development application meets the standards listed at cl 30 of SEPP ARH, meeting the requirements of the precondition. 4. SEPP ARH, pursuant to cl 30AA, allows boarding houses with development consent in the R2 zone (subject to a maximum of 12 rooms). The proposal meets this requirement. 5. In determining the development application, I have taken into consideration whether the design is compatible with the local area as required by cl 30A of the SEPP ARH. 6. The development application complies with the development standards for maximum height in LEP 2015. 7. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for a residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy 55—Remediation of Land, I accept that the likelihood of contamination is low. Further, if contamination is discovered during the implementation of the consent, I am satisfied that the annexed conditions will ensure the land will be remediated before the land is used as a boarding house. 8. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 9. LEP 2015 requires consideration, pursuant to cl 7.7, as to whether the proposal exhibits design excellence. It is the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area and exhibits the required design excellence. As required by cl 7.7 I have given consideration to the matters listed at subcl (4) and I am satisfied that the development exhibits design excellence. 10. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 11. In determining the development application, I have considered the requirements of cll 5 and 6 of Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20). I accept the agreed position of the parties that the development is not inconsistent with the broad objectives of SREP 20. 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 Court notes: 1. Blacktown City Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA Number DA-21-00559 filed with the Court on 24 May 2021. 2. The applicant lodged the amended development application on the NSW planning portal on 10 November 2021. 3. The applicant filed with the Court the amended application on 11 November 2021. 1. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The appeal is upheld. 2. Development application DA-21-00559 for the demolition of an existing building, construction of a 2-storey 12 x room boarding house including 11 double lodger rooms and 1 manager's room to accommodate a maximum of 24 persons with basement car park on land legally comprising of the allotment described as Lot 9 DP 26584, known as 227 Bungarribee Road, Blacktown is approved subject to the conditions set out in Annexure "A". ………………………… D M Dickson Commissioner of the Court Annexure A (325701, 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: 23 November 2021