Land and Environment Court New South Wales Medium Neutral Citation: JH Capital Auburn Pty Ltd v Cumberland Council [2022] NSWLEC 1072 Hearing dates: Conciliation conference on 19 January 2022 and 2 February 2022 Date of orders: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders: (1) The Appeal is upheld. (2) Application DA-2021/0477 for demolition of existing structures and construction of a four (4) storey boarding house containing 42 boarding rooms, including a manager's room with two (2) levels of basement for car parking on land legally comprising of the allotment described as Lot 11 in DP 655964 known as 100 St Hilliers Road, Auburn is approved subject to the conditions annexed hereto and marked Annexure "A". Catchwords: DEVELOPMENT APPLICATION – boarding house – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Auburn Local Environmental Plan 2010, cll 2.7, 4.3 Cumberland Local Environmental Plan 2021, cl 1.8A Environmental Planning and Assessment Act 1979, cll 8.7, 4.15 Land and Environment Court Act 1979, s34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55—Remediation of Land, cl 7 State Environmental Planning Policy (Infrastructure) 2007 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 21, 22, 23, 24, 25, 26, 27, 27A, 27B, Pt 3, Div 2 Category: Principal judgment Parties: JH Capital Auburn Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Cumberland Council (Respondent) File Number(s): 2021/298066 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 JH Capital Auburn Pty Ltd (Applicant) against the Respondent's deemed refusal of Development Application No. DA21/0477 with Cumberland Council on 3 September 2021. 2. The development application seeks consent for the demolition of existing structures and construction of a four (4) story boarding house containing 42 boarding rooms, including a manager's room, with two (2) levels of basement car parking. The development is to be constructed on lot 11 in DP 655964, known as 100 St Hilliers Road, Auburn. 3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 19 January 2022. 4. 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(1) conciliation conference on 2 February 2022. I presided over both conciliation conferences. 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. 5. 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. 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). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Auburn Local Environmental Plan 2010 (ALEP 2010), the subject site is zoned R4 High Density Residential. Demolition is permissible pursuant to cl 2.7 of ALEP 2010. 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 application as the site is zoned R4 High Density Residential and is therefore a land use listed in 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. 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. 5. The development application complies with the development standards for maximum height in cl 4.3 of ALEP 2010. 6. Consideration has been given as to whether the site is contaminated as required by cl 7 of State Environmental Planning Policy No 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. 7. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 8. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 9. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the land as the development has frontage to a classified road. The application was referred to Transport NSW and concurrence was granted subject to conditions. These conditions have been included in the conditions of consent at Annexure A. The parties agree, and I am satisfied, that the requirements of SEPP Infrastructure are met. 10. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP Sydney Harbour) applies to the land and cl 20(a) requires the consent authority to consider those matters referred to in Pt 3, Div 2. I accept the agreed position of the parties, that the development will have no impact on, or implications for, the matters referred to in cll 21-26 and that cll 27, 27A and 27B are not applicable. 11. The Cumberland Local Environmental Plan 2021 (CLEP) came into force on 5 November 2021. Pursuant to the savings provisions, at cl 1.8A of the CLEP, the DA is to be determined as if the plan had not commenced. 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. 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. 4. 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 2021/0477 for the demolition of existing structures and construction of a four (4) story boarding house containing 42 boarding rooms, including a manager's room, with two (2) levels of basement for car parking on land legally comprising of the allotment described as Lot 11 DP 655964, known as 100 St Hilliers Road, Auburn is approved subject to the conditions annexed hereto and marked Annexure "A". ………………………… S Harding Acting Commissioner of the Court Annexure A (493338, 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: 15 February 2022