Land and Environment Court New South Wales Medium Neutral Citation: Caygisval Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1225 Hearing dates: Conciliation conference on 17 February 2022 Date of orders: 05 May 2022 Decision date: 05 May 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant's written request pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 to vary the development standard for Height of Buildings contained in clause 4.3 thereof, as prepared by Planning Ingenuity dated 2 March 2022, is upheld; (2) The appeal is upheld; (3) Consent is granted to Development Application DA2021.229 for the construction of a five-storey new age boarding house containing 52 boarding rooms in a single building including a manager's room, communal lounge room, a communal gym and two levels of basement car park and related landscaping, at 15-17 Albert Road, Strathfield, subject to the conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 55(1), 77 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 55 - Remediation of Land, cl 7 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 State Environmental Planning Policy (Housing) 2021, cl 2 of Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Strathfield Local Environmental Plan 2012, cll 1.2, 2.3, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022) Category: Principal judgment Parties: Caygisval Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: V Conomos (Solicitor)(Applicant) K Law (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2021/295707 Publication restriction: No Judgment 1. COMMISSIONER: Caygisval Pty Ltd (the Applicant) has appealed the refusal by Strathfield Municipal Council (the Respondent) of its development application DA2021.229, made with owner's consent, seeking consent for the construction of a 5 storey new age boarding house including a manager's room, communal lounge room, a communal gym and two levels of basement car parking and related landscaping (the Proposed Development) at 15-17 Albert Road, Strathfield (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was placed on public exhibition by the Respondent between 9 and 30 September 2021, and nine submissions were received in response to that notification. 4. On 17 February 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference as one objector provided a submission during the site view. 6. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. Under s 34(3) of the Land and Environment Court Act 1979 (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. 8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) (incorporating the provisions of the former and now repealed State Environmental Planning Policy No. 55 - Remediation of Land): 1. a Preliminary Site Investigation and Assessment was undertaken by Dr Upsilon Environments Pty Ltd which concluded that the land is suitable in its current state for the proposed use as a boarding house, and no remediation of the Subject Site is required; and 2. I am satisfied that the provisions of cl 4.6(1) of SEPP R&H have been fulfilled; 1. In relation to the provisions of State Environmental Planning Policy (Housing) 2021 (SEPP Housing): 1. the Proposed Development is subject to the savings provisions in cl 2(1)(a) of Schedule 7A of SEPP Housing, and as a consequence is subject to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); 2. the Parties have confirmed, and I am satisfied, that the design of the Proposed Development achieves the standards for boarding houses provided within cl 30 of SEPP ARH, as follows: 1. it provides at least one communal living room, due to having 52 (more than 5) boarding rooms in total; 2. no boarding rooms have a gross floor area (excluding any area used for the purposes of a private kitchen or bathroom facilities) of more than 25 m2, with the largest rooms being G07, 107, 207 & 307, at a floor area of 21.57m2; 3. no boarding room shall be occupied by more than 2 adult lodgers each; 4. private bathroom and kitchen facilities have been provided for each boarding room, which is deemed to be adequate for the use of each lodger; 5. it provides an on-site dwelling by way of an allocated boarding room for the use of a boarding house manager, due to accommodating a maximum of 102 (more than 20) lodgers across the entire development; 6. it is not reserved on the ground floor for non-residential purposes, due to the site not being zoned for primarily commercial use (the Subject Site is zoned R2); and 7. parking has been provided for at least one bicycle and one motorcycle for every 5 boarding rooms, with a total of 12 motorcycle spaces and 14 bicycle spaces having been provided (where 11 spaces each are required); 1. the Parties have also advised that consideration has been given to the design of the development and its compatibility with the character of the local area, and as required by cl 30A of the SEPP ARH, and they agree, and I am satisfied, that the design is compatible with the local character because the scale of the proposal, coupled with its height, setbacks, and its proposed materials and finishes ensure that the development will sit comfortably within its visual context and will be compatible with the character of the local area; 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) the Proposal is a BASIX affected development, containing a BASIX affected building; and 1. the Parties have provided an updated BASIX certificate number 1220383M_03, dated 28/02/2022, in relation to the Proposed Development as amended; and 2. I am satisfied that the provisions of State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 and the EP&A Regulation as they pertain to the Proposed Development have been satisfied; 1. in relation to the provisions of the Strathfield Local Environmental Plan 2012 (SLEP), the Parties have advised, and I am satisfied that: 1. the Proposed Development is consistent with the aims of the SLEP pursuant to cl 1.2 of SLEP; 2. the Proposed Development is for the purpose of a boarding house, and the Proposed Development, as amended, is a permissible development with consent in the R3 medium density residential zone applicable to the Subject Site under cl 2.3 of SLEP, and is consistent with the relevant objectives of the R3 medium density residential zone. 3. the height of buildings (HoB) development standard applicable to the Subject Site under cl 4.3(2) of SLEP is a maximum of 14m, and the Proposed Development, as amended, has a maximum building height of 14.819m, which exceeds the standard, and in relation to this: 1. the exceedance in the HoB standard in cl 4.3 of SLEP is attributable to the Flood Planning Level applicable to the Subject Site; and 2. the Applicant has submitted a written request to vary of the HoB standard in cl 4.3 of SLEP which the Parties agree, and I am satisfied, is well founded and satisfies the requirements of cl 4.6 of SLEP; 1. in relation to the provisions of cl 4.4 of SLEP, the floor space ratio (FSR) applicable to development on the Subject Site is 1.45:1; and in relation to this: 1. cl 29(1) of SEPP(ARH) precludes a consent authority from refusing consent to the proposal if its FSR is not more than the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus an additional 0.5:1 pursuant to the provisions of cl. 29(1)(c) of SEPP(ARH), and which then provides for a maximum FSR for development on the Subject Site of 1.95:1; 2. the FSR of the Proposed Development is 1.81:1, and the Parties advise, and I am satisfied, that the Proposed Development thus complies with the requirements of cl. 29(1)(c) of SEPP ARH which prevail over those within cl 4.4 of SLEP; 1. in relation to the provisions of cl 6.1 of SLEP concerning acid sulphate soils, the Acid Sulfate Soils Map within SLEP confirms that the Subject Site as not being in any of the classes of land that would engage further provisions of that clause; 2. in relation to the provisions of cl 6.2(3) of the SLEP, development consent is required for earthworks, unless the earthworks are (a) exempt development or (b) ancillary to development that is permitted without consent, and in relation to this: 1. in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters set out in cl. 6.2(3); and 2. the Parties agree that the Proposal is acceptable in relation to cl 6.2 of SLEP; 1. in relation to the provisions of cl 6.3 of SLEP concerning flood planning and which applies to development on the Subject Site; the Parties have advised that the Subject Site is below the Flood Planning Level, but the Ground Floor Level of the Proposed Development, as amended, complies with the Flood Planning Level; 1. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submission of the one objector which is a relevant consideration under s 4.15(1)(d) of the EP&A Act. The Parties agree that the submission of the objector has been considered by them and the Proposed Development, as amended, can be approved. 1. Having considered the advice of the Parties, provided above at [8], I agree that: 1. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and 2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 1. Further, I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 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 merit assessment of the issues that were originally in dispute between the Parties. 4. Finally, the Court notes that: 1. the Respondent has agreed to the Applicant amending its development application pursuant to cl 55(1) of the EP&A Regulation; 2. the Applicant has uploaded the amended application onto the NSW planning portal on 13 April 2022 comprising all the documents and plans set out in condition 1 of the attached Conditions of approval in Annexure A to this judgment, and the Planning Portal references are:_PAN-139676, Case ID AI-410921, dated 10/03/2022, Case ID AI-446629, dated 13/04/2022; 3. the Applicant has filed the amended architectural plans with the Court on 13 April 2022. Orders 1. The Court orders that: 1. the Applicant's written request pursuant to clause 4.6 of the Strathfield Local Environmental Plan 2012 to vary the development standard for Height of Buildings contained in clause 4.3 thereof, as prepared by Planning Ingenuity dated 2 March 2022, is upheld; 2. the appeal is upheld; 3. consent is granted to Development Application DA2021.229 for the construction of a five-storey new age boarding house containing 52 boarding rooms in a single building including a manager's room, communal lounge room, a communal gym and two levels of basement car park and related landscaping, at 15-17 Albert Road, Strathfield, subject to the conditions set out in Annexure 'A'. ……………………….. M Chilcott Commissioner of the Court Annexure A (368975, 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: 05 May 2022