Land and Environment Court New South Wales Medium Neutral Citation: Zoe May Pty Ltd v Maitland City Council [2021] NSWLEC 1799 Hearing dates: Conciliation conference 7 December 2021 Date of orders: 12 January 2022 Decision date: 12 January 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application DA18/1394 for the demolition of two existing dwelling houses and the construction of a part three storey, part two storey boarding house comprising of 31 boarding rooms and one managers residence on land legally identified as Lot 11 and Lot 12 in Deposited Plan 246016 and known as 21 and 22 Burnham Close, Thornton subject to the conditions of consent contained at Annexure A to this agreement. (3) The Applicant is to pay the Respondent's costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agree in the amount of $12,500 within 28 days. Catchwords: DEVELOPMENT APPLICATION – demolition and construction of new boarding house – amended plans – agreement between the parties – orders. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Maitland Local Environmental Plan 2011, cll 2.3, 2.7, 7.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 28, 30, 30AState Environmental Planning Policy (Housing) 2021, Sch 7, cl 2 Category: Principal judgment Parties: Zoe May Pty Ltd (Applicant) Maitland City Council (Respondent) Representation: Counsel: A Spizzo (Solicitor) (Applicant) N Simmon (Solicitor) (Respondent) Solicitors: Alice Spizzo Advisory (Applicants) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/196949 Publication restriction: No Judgment 1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the actual refusal of Development Application No. DA/18/1394 by Maitland City Council (the Respondent) on 8 June 2021. The development application, as amended, seeks consent for demolition of two existing dwellings and construction of a part three, part two storey boarding house comprising 31 boarding rooms and a manager's residence. The development is proposed at 21 and 22 Burnham Close Thornton, being Lot 11 and Lot 12 in DP 246016. 2. 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 5 November 2021. I presided over the conciliation conference. Following the conciliation, agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment. 3. 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. By reference to the development application form filed, Owner's consent has been given to the Applicant for lodgement of the Development Application. 2. The Maitland Local Environmental Plan 2011 (LEP 2011) applies to the site. Pursuant to LEP 2011 the site is zoned R1 General Residential. The proposed development is for the purpose of a boarding house which is a permitted use in the zone. Demolition is permissible pursuant to cl 2.7 of LEP 2011. In determining the development application, I have had regard to the objectives of the zone: cl 2.3(2) of LEP 2011. 3. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) commenced on 1 September 2021. The development application the subject of these proceedings is saved from the operation of the Housing SEPP pursuant to Sch 7, cl 2(a). As a result, State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies. 4. Under cl 28 of SEPP ARH boarding houses are permissible on residentially zoned land. The site is zoned R1 General Residential. The amended development application complies with the requirements and standards detailed at cl 30 of SEPP ARH. In determining the development application, as required by cl 30A of SEPP ARH, I have taken into consideration whether the design of the development is compatible with the character of the local area. 5. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. 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. Based on the historical use of the site as residential, it is considered unlikely that the site will require remediation works. No change of use is proposed by the development application. I accept that the site will be suitable for the proposed development. 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. 6. An amended BASIX certificate has been filed to reflect the amended architectural plans in satisfaction of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 7. The proposed development includes earthworks for the purpose of cl 7.2(3) of LEP 2011. In granting consent, I have considered the matters in subcl (3) and have formed a view that they do not warrant the refusal of the development application. 8. The application was notified in accordance with the relevant development control plan, and I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. Maitland City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA/18/1394. 2. That the Respondent has uploaded the amended development application on the NSW planning portal on 13 December 2021. 3. That the applicant filed the amended development application with the Court on 15 December 2021. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA18/1394 for the demolition of two existing dwelling houses and the construction of a part three storey, part two storey boarding house comprising of 31 boarding rooms and one managers residence on land legally identified as Lot 11 and Lot 12 in Deposited Plan 246016 and known as 21 and 22 Burnham Close, Thornton subject to the conditions of consent contained at Annexure A to this agreement. 3. The Applicant is to pay the Respondent's costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, agree in the amount of $12,500 within 28 days. ………………………… D M Dickson Commissioner of the Court (Annexure A) (391470, 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: 12 January 2022