Land and Environment Court New South Wales Medium Neutral Citation: Liu v Penrith City Council [2022] NSWLEC 1385 Hearing dates: Conciliation conference on 8 March and 6 April 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The appeal is upheld. (2) Development Application No. DA21/0561 for demolition of existing dwelling and construction of a two (2) storey boarding house comprising 9 boarding rooms, including five (5) at grade car parking spaces and associated landscaping on land legally comprising of the allotment described as Lot 211 DP31157, known as 27 Coreen Avenue, Penrith is approved subject to the conditions set out in Annexure "A" to this agreement. (3) Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) the parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in [2] above. Catchwords: DEVELOPMENT APPEAL – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010, cll 2.7, 4.3, 4.4, 4.5 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 30 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Chia – Chen Liu (Applicant) Penrith City Council (Respondent) Representation: Counsel: Graham McKee (Solicitor) (Applicant) Catherine Morton (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/327271 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA21/0561 (the DA) by Penrith City Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 651m2 parcel of land which is legally described as Lot 211 DP 31157 and known as 27 Coreen Avenue Penrith (the Site). The DA as submitted to Council sought consent for the demolition of the existing structures and the construction of a two storey boarding house comprising 8 x single rooms and 2 x double rooms, a communal room, outdoor communal areas, carparking for 5 vehicles and associated landscaping, drainage, and infrastructure. 3. The Development Application was notified by the Respondent for a period of 14 days from 20 August to 3 September 2021. A total of six (6) submissions were received and these submissions have been considered by the Respondent and by the Court. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conferences which were held on 8 March and 6 April 2022. Due to the Covid-19 protocols in place at the time, and by agreement between the parties, the conciliation conference was held via teleconference. Council provided a copy of all resident objections in advance of the conciliation conference. 5. The proposed development for which consent is sought has been amended by the applicant (Amended Development Application) and formed the basis of discussions at the s 34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and agreed conditions of consent with the Court on 5 April 2022 and copies of relevant plans and documents referred in the agreement also on 5 April 2022. 6. The main changes between the plans as originally submitted to Council and the Amended Development Application plans, the subject of the s 34 agreement, are: 1. Reduction in the number of boarding house rooms from 10 to 9 rooms; 2. The relocation of the motorbike parking and bicycle spaces away from the northern boundary, to within the enclosed ground floor parking area; 3. Internal changes to make the communal room larger by removing unit 3 and redesign of the internal stairs and chairlift; 4. Minor changes to the landscaping, stormwater and retaining walls; 5. Changes to the waste management facilities, including redesign of the bin room and increased screen planting along the northern boundary. 1. 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 function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [8] – [13] below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Penrith Local Environmental Plan 2010 (PLEP 2010) are: 1. The proposed development is characterised as a boarding house which are prohibited in the R2 Low Density Residential zone under PLEP. However, boarding houses are permitted with development consent under State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH). 2. Consent for the demolition of the existing structures on the Site are sought as part of the Proposed Development pursuant to cl 2.7 of the PLEP. I am satisfied that demolition of the structures is acceptable provided the demolition is carried out in accordance with the relevant standards and the waste management/demolition plan submitted with the development application. 3. The maximum height of the Proposed Development is 8.4m which complies with the building height development standard of 8.5m in cl 4.3 of PLEP. 4. Clause 4.4 specifies no maximum floor space ratio for the Site and under cl 5.10 there are no heritage items on or in the vicinity of the site. 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. I am satisfied from the evidence that the site has historically been used for residential purposes and is not contaminated and does not adjoin land known to be contaminated. 2. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an amended BASIX certificate dated 30 March 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument. 3. In relation to SEPP ARH and State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)): 1. The development application was lodged on 10 August 2021, prior to the SEPP (Housing) coming into force on 26 November 2021. Schedule 7 in the SEPP (Housing) contains a savings and transitional provision which means the previous SEPP ARH applies. 2. Clause 26 of the SEPP ARH sets out land to which the SEPP applies, which includes land in the R2 Low Density Residential zone, which is the zone which applies to the Site. 3. Clause 27 is satisfied as the proposed boarding house is listed as development which may be carried out with development consent in the R2 Low Density Residential Zone. 4. Clause 30 sets out various standards for boarding houses that must be satisfied before a consent authority grants consent to the development. I am satisfied from the evidence that the proposed boarding house complies with all of the relevant standards in cl 30. 5. 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' agreement. 1. The Court notes: 2. Penrith 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 Number DA21/0561 filed with the Court on 17 November 2021 with the plan listed in Condition 1 of the Conditions of Consent provided as Annexure 'A' to this agreement. 3. Pursuant to s 8.15(3) of the EPA Act, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $9,500.00. 4. The applicant has uploaded the amended development application on the NSW planning portal on 1 April 2022. 5. The applicant is to file the amended application with the Court by 6 April 2022. 6. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA21/0561 for demolition of existing dwelling and construction of a two (2) storey boarding house comprising 9 boarding rooms, including five (5) at grade car parking spaces and associated landscaping on land legally comprising of the allotment described as Lot 211 DP31157, known as 27 Coreen Avenue, Penrith is approved subject to the conditions set out in Annexure "A" to this agreement. 3. Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979 (NSW) the parties request that the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in [2] above. L Sheridan Acting Commissioner of the Court Annexure A FINAL (337188, 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: 21 July 2022