Land and Environment Court New South Wales Medium Neutral Citation: Sfeir v Blacktown City Council [2022] NSWLEC 1289 Hearing dates: Conciliation conference on 10 June 2022 Date of orders: 14 June 2022 Decision date: 14 June 2022 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA-21-00750, as amended, for the demolition of all existing structures and the construction of a new generation boarding house containing 10 rooms to accommodate up to 18 persons at 199 Beames Avenue, Mount Druitt, subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new generation boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.3, 7.7 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 s 2.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Blacktown Development Control Plan 2015 Category: Principal judgment Parties: Peter Sfeir (First Applicant) Theresa Sfeir (Second Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Saab (Solicitor) (Applicants) L Raffaele (Solicitor) (Respondent) Solicitors: Macquarie Lawyers (Applicants) Bartier Perry (Respondent) File Number(s): 2021/317392 Judgment 1. The applicants have appealed against Blacktown City Council's deemed refusal of a development application DA-21-00750 (DA) for the construction of a 10-room new generation boarding house at 199 Beames Avenue, Mount Druitt (the site). 2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 June 2022, and at which I presided. At the conciliation conference, 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 development consent to an amended application subject to conditions. 4. Under s 34(3) of the 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. The parties' decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant consent to the development application, as amended. 5. Based on the documentation filed with the Court, I am satisfied that I have the power to make the orders sought for the following reasons. Owners' consent 1. The applicants are the owners of the site and the declaration regarding consent is contained in the original DA form dated 22 April 2021 (a copy of which forms part of the Class 1 Application). State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) 1. The applicants have provided a Phase 2 Environmental Site Assessment prepared by Integral Environmental Solutions dated 8 September 2021, specifying the findings of an investigation of the site carried out in accordance with the contaminated land planning guidelines, and in accordance with s 4.6(2) of the Resilience & Hazards SEPP. 2. The Council advises that there is no known contamination of the site, and in that circumstance, I accept that no further investigation of the site is warranted, and the site is suitable for the proposed use. 3. Accordingly, s 4.6 of the Resilience & Hazards SEPP has been addressed. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) 1. Pursuant to the BASIX SEPP and the Environmental Planning and Assessment Regulation 2000, the proposal is a BASIX-affected development, containing a BASIX-affected building. A current BASIX certificate has been provided and on that basis the SEPP is addressed. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP)—Chapter 2 Vegetation in non-rural areas 1. Chapter 2 of the Biodiversity & Conservation SEPP applies to the DA. Section 2.6 states that a person must not clear non-exempt vegetation in any applicable area without a permit granted by Council. 2. A landscape plan has been provided as part of the DA. The impact on existing vegetation has been assessed having regard to Ch 2 of the Biodiversity & Conservation SEPP and I am satisfied that it is acceptable. State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) 1. The ARH SEPP applies to the DA. Pursuant to cl 29(1), the DA complies with the applicable existing floor space ratio (FSR). 2. Pursuant to cl 29(2), the DA does not breach the maximum height control for the site. 3. Pursuant to cl 30, I am satisfied that: 1. as the boarding house has more than five boarding rooms, there is at least one communal living room; 2. no boarding room will have a gross floor area (excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25sqm; 3. no boarding room will be occupied by more than 2 adult lodgers; 4. adequate bathroom and kitchen facilities will be available within the boarding house for the use of each lodger; 5. a manager's room has been provided; 6. at least 0.5 car spaces are provided for every boarding room (five are proposed), one bicycle space provided for every five boarding rooms (two are proposed), and one motorcycle for every five boarding rooms (two are proposed). 1. Having regard to cl 30A of the ARH SEPP, I note that the Council is satisfied that the proposed development is compatible with the character of the local area. Blacktown Local Environmental Plan 2015 (LEP) 1. The proposal is permissible with development consent in the R2 Low Density Residential zone under the LEP. The parties agree that the amended proposal is consistent with the objectives of the R2 zone and the aims of the LEP. 2. The height of the proposal complies with cl 4.3 of the LEP. 3. There is no FSR prescribed for the land under cl 4.4 of the LEP. 4. Clause 5.10 is not relevant to the proposal. 5. Clause 6.3 has been considered and the stormwater impacts found to be acceptable. 6. In relation to cl 6.1, the Phase 2 Environmental Site Assessment prepared by Integral Environmental Solutions dated 8 September 2021 indicated that acid sulfate soils were not present. 7. Clause 7.7 dealing with design excellence has been addressed and considered and the development addresses all relevant matters. 1. Furthermore, the Council advised me that the following matters have been satisfied: Blacktown Development Control Plan 2015 (DCP) 1. The DCP applies to the DA, including relevantly Parts A, C, G and J. Subject to conditions, and the amended proposal complies with the objectives and controls of the DCP. Remaining matters in s 4.15(1) of the EPA Act 1. The DA was notified for a period of 14 days from 8 July 2021 until 22 July 2021. One individual submission was received. 2. The parties have taken the submissions of the objector into account as required under s 4.15(1)(d) of the EPA Act and the Council is satisfied that the concerns raised by the objector have been addressed through the amended proposal. 1. For these reasons, the Court endorses the agreement of the parties as required by s 34(3) of the LEC Act. 2. The Court notes: 1. That Blacktown City Council as the relevant consent authority, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, has consented to the applicants amending the development application DA-21-00750 made on 22 April 2021 to rely on the documents and plans specified below: Drawing No. Drawing Name Prepared by Revision Date 00 Compliance Table, Baini Design E 9 March 2022 BASIX Commitments 01 Site Plan Baini Design E 9 March 2022 02 Site Analysis Plan Baini Design E 9 March 2022 03 Site Context Plan Baini Design E 9 March 2022 04 Demolition Plan Baini Design E 9 March 2022 05 Shadow Diagrams Baini Design E 9 March 2022 06 Floor Plans Baini Design E 9 March 2022 07 Elevations and Sections Baini Design E 9 March 2022 08 Area Calculation Plan Baini Design E 9 March 2022 09 Solar Access Baini Design E 9 March 2022 10 Schedule of Finishes Baini Design E 9 March 2022 11 Bin Collection Plan Baini Design E 9 March 2022 1 of 1 Landscape Design Greenscene Plans B 10 March 2022 S101 Cover Sheet Deboke Engineering C 10 March 2022 S200 Ground Floor & Level 1 Plan Deboke Engineering C 10 March 2022 S201 Roof Stormwater Management Plan Deboke Engineering C 10 March 2022 S202 Roof Stormwater Management Plan Deboke Engineering C 10 March 2022 S203 Additional Flood Storage Plan Deboke Engineering C 10 March 2022 S300 Details Sheet Deboke Engineering C 10 March 2022 S400 Erosion Sediment Control Plan Deboke Engineering C 10 March 2022 BASIX Certificate No 1182541M_02 AKV Pty Ltd 27 May 2022 (the amended application). 1. That the applicants uploaded the amended application on the NSW planning portal on 7 June 2022. 2. That the applicants have subsequently filed the amended application with the Court on 10 June 2022. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA-21-00750, as amended, for the demolition of all existing structures and the construction of a new generation boarding house containing 10 rooms to accommodate up to 18 persons at 199 Beames Avenue, Mount Druitt, subject to the conditions contained in Annexure A. ………………………. S Dixon Senior Commissioner of the Court Annexure A (348029, 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: 14 June 2022