Land and Environment Court New South Wales Medium Neutral Citation: C Ahadizadeh Pty Ltd v Central Coast Council [2023] NSWLEC 1052 Hearing dates: Conciliation Conference 27 January 2023 Date of orders: 08 February 2023 Decision date: 08 February 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development application DA/222/2021 for the change of use of existing building (former nursing home) into a boarding house and associated works at 51 Peel St Toukley 2263 Lot 2 DP 850314, is determined by grant of consent, subject to the conditions of consent in Annexure A. Catchwords: DEVELOPMENT APPEAL – change of use – boarding house - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987, s 30A Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Housing) 2021, s 29, Sch 7 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 Wyong Local Environmental Plan 2013, cll 4.3, 4.4, 5.10, 6.2, 7.1, 7.3 Category: Principal judgment Parties: C Ahadizadeh Pty Ltd (Applicant) Central Coast City (Respondent) Representation: Counsel: M Sonter (Solicitor)(Applicant) C Rose (Solicitor)(Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/86278 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/222/2021 for the conversion of an existing building into a boarding house and associated works (the Proposed Development) at 51 Peel Street Toukley legally described as Lot 2 in DP 850314 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 January 2023. I have presided over the conciliation conference. 3. 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 the development 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 5. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be in a number of provisions of planning instruments. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional note. I set out a summary of the relevant aspects of that jurisdictional note which satisfy the jurisdictional prerequisites. 7. On 19 March 2021 the Proposed Development was notified until 19 April 2021 and again, between 11 June 2021 and 12 July 2021 the Proposed Development was renotified, as the Respondent had identified a number of affected properties were not originally notified. In total, 34 objections were received from affected properties and 148 objections from the general public. The Site comprises existing buildings previously used for the purpose of a nursing home and has been disused for some time. The concerns raised related to the nature and type of boarding house. 8. On 10 November 2022, the Development Application was amended with leave of the Court in response to the Statement of Facts and Contentions filed 9 June 2022 (SOFAC). The documents included in the Amended Application were lodged on the planning portal on 9 November 2022 and filed with the Court on 3 November 2022. 9. The main changes to the Development Application for which leave was granted are as follows: 1. rooms 45 & 46 are amalgamated into a new double room; 2. rooms 47 & 48 are amalgamated into a new double room; 3. Rooms 42, and 51 have been provided with an outdoor kitchen and are each 13m; 4. 6 washing machines and driers have been added to the main Laundry; 5. additional cooking facilities added to communal room; 6. various rooms on levels 1 & 2 have had Laundry facilities added with room areas recalculated; 7. communal room relocated to opposite side of corridor and combined with smaller room to achieve a 46m2 room with a northern aspect on level 1 & 2; 8. additional bicycle parking provided throughout; 9. air conditioning units shown and assigned to relevant rooms; 10. toilet at end of corridor moved into room 12, glass added to end of corridor wall to provide light to corridor; and 11. existing driveway crossing on Peel Street to be removed and kerb/verge to be reinstated. 1. The Proposed Development is accompanied by a detailed Plan of Management dated 10 October 2022 prepared by Judith Stubbs and Associated. 2. In addition, on 21 October 2022, the amended Development Application was notified until 18 November 2022. More than 100 submissions were received. These submissions have been reviewed and considered by the parties in coming to the agreement before the Court. The parties agree that the concerns raised by the objectors are addressed by the amended plans and additional information, in particular the updated Plan of Management dated 10 October 2022 prepared by Judith Stubbs and Associates together with consent condition number 6 which deals with the implementation of and compliance with the Plan of Management at all times during operation of the premises as a Boarding House. 3. The parties have agreed that the Amended Application has resolved the remaining substantive issues raised in the SOFAC filed by the Respondent on 9 June 2022. 4. Owner's consent has been given to the Applicant for lodgement of the Development Application as evidenced in the Development Application form filed with the Class 1 Application. 5. In response to contention 13 of the SOFAC, the Applicant has provided a detailed title search portfolio and separate property advice to the Respondent which demonstrates the historical covenants on title do not impact upon the Proposed Development. Consent Condition 5.7 requires the registration of covenants for the stormwater detention system in favour of Council. 6. A number of State Environmental Planning Policies that applied to the Proposed Development have since been repealed during the appeal process. The relevant provisions were transferred into new State Environmental Planning Policies (SEPPs). Pursuant to s 30A(2) of the Interpretation Act 1987, where provisions are transferred, the "transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred." The repealed and current SEPPs where applicable are dealt with below, noting the relevant provisions that apply in the assessment of the Proposed Development as amended. 7. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), cl 6 states as follows: Buildings to which Policy applies (1) This Policy applies to buildings arising from the following development: (a) proposed BASIX affected development for which the regulations under the Act require a BASIX certificate to accompany a development application or an application for a complying development certificate or construction certificate, (b) proposed BASIX optional development in relation to which a BASIX certificate accompanied a development application or an application for a complying development certificate, despite the fact that the regulations under the Act did not require a BASIX certificate, (c) BASIX affected development and BASIX optional development the subject of a development consent, complying development certificate or construction certificate that, pursuant to the regulations under the Act, is subject to a BASIX commitment. 1. Under the Environmental Planning and Assessment Regulation 2000 a 'BASIX affected development is defined as follows: BASIX affected development means any of the following development that is not BASIX excluded development— (a) development that involves the erection (but not the relocation) of a BASIX affected building, (b) development that involves a change of building use by which a building becomes a BASIX affected building, 1. Under the Environmental Planning and Assessment Regulation 2000 a 'BASIX affected building' is defined as follows: BASIX affected building means a building containing at least 1 dwelling, but does not include the following types of development as defined in the Standard Instrument— (a) hotel or motel accommodation, or (b) a boarding house, hostel or co-living housing that— (i) accommodates more than 12 residents, or (ii) has a gross floor area of more than 300 square metres. 1. As the proposed development is for a 'boarding house' meeting the above requirement, this form of development is not a BASIX affected building and I am satisfied that a BASIX certificate is not required. 1. The Development Application was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). 2. I have read the Statement of Environments Effects filed with the Court at Tab 7 of the Class 1 Application. I note the historical use of the Site as a nursing home and that the Proposed Development does not include any significant excavation and am satisfied that further contamination investigation is not warranted and that there has been adequate consideration of the status of the Site and method of remediation in accordance with s 4.6 of the Resilience and Hazards SEPP. 3. The Proposed Development proposes a boarding house component in an R1 Residential Zone and the development application was submitted in accordance with Div 3, Pt 2 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). On 26 November 2021, the ARH SEPP was repealed, and its provisions transferred to the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). Given that the Development Application was lodged prior to the commencement of the Housing SEPP, the ARH SEPP continues to apply in accordance with the savings and transitional provision under Sch 7(2)(a) of the Housing SEPP. 4. In accordance with cl 29 of the ARH SEPP, the relevant provisions are addressed as follows: 1. Clause 29(1)(c) - the Development Application is entitled to an additional 0:5:1 floor space ratio (FSR) as residential flat buildings are permissible within the R1 Zone. The permissible FSR for the site is 0.6:1 plus the additional 0.5:1. The FSR of the Development Application is 0:67:1 being 2434 m2; 2. Clause 29(2)(a) – the Development Application is compliant with the Wyong Local Environmental Plan 2013 height control of 16m with a height of 9.07m; 3. Clause 29(2)(b) – the Development Application maintains the existing landscape, whilst providing for improvements; 4. Clause 29(2)(c) – the proposed communal living rooms will receive a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter; 5. Clause 29(2)(d) –various external private open spaces are provided at ground level including at least one area of at least 20m2 with a minimum dimension of 3m. Further, the boarding house manager has a private open space of 30 m2; 6. Clause 29(2)(e) – the development provides for 32 parking spaces for the boarding house including 3 accessible spaces, as required; and 7. Clause 29(2)(f) – each proposed single room is at least 12m2 and each double room is at least 16m2 (excluding any area used for the purposes of private kitchen or bathroom facilities). 1. Clause 30 of the ARH SEPP provides that a consent authority must not grant consent unless it is satisfied that the proposed development satisfies the provisions under subcl 30(1). In compliance with these requirements, I am satisfied that the Proposed Development: 1. includes x3 communal living rooms with a minimum of 30m2; 2. does not include any boarding rooms with a GFA of more than 25m2 (excluding area dedicated for the purpose of a private kitchen or bathroom); 3. does not propose any rooms to be occupied by more than 2 lodgers; 4. provides adequate kitchenette and bathroom facilities for each lodger; 5. includes a room for the boarding house manager; 6. is not located on land zoned primarily for commercial purposes; and 7. provides for more than one bicycle space per every 5 boarding rooms (11 motorcycle and 56 bicycle spaces proposed). 1. Pursuant to cl 30A of the ARH SEPP, the Respondent agrees, and I am satisfied that the Proposed Development is compatible with the character of the local area. 2. The development application was originally lodged under the provisions of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP). On 1 March 2022, the Vegetation SEPP was repealed, and its provisions were transferred to Ch 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). 3. Chapter 2 of the Biodiversity SEPP regulates clearing that is not ancillary to development requiring consent. In circumstances in which the clearing is ancillary to the development requiring consent, this Chapter does not apply, and any tree removal will be assessed as part of the standard development assessment process. The minor tree removals proposed are ancillary to the development application, for which consent is sought. Significant additional landscaping and tree plantings are to be provided as evidenced within the updated landscape plans prepared by Ray Fuggle Associates and included in the Conditions of Consent. 4. The Wyong Local Environmental Plan 2013 (WLEP) contains a number of relevant jurisdictional provisions. Firstly, the Proposed Development is for a boarding house which is permissible with consent within the R1 General Residential zone. 5. Pursuant to cl 4.3 (Height of buildings) of the WLEP, the maximum building height for the site is 16 metres. The existing building is 9.07m and the Proposed Development does not propose any increase to the height of buildings. 6. The Proposed Development has a maximum Floor Space Ratio (FSR) limit of 0:6:1 under cl 4.4 of the WLEP. However, pursuant to the Housing SEPP s 29(c), the proposal qualifies for a 0.5:1 increase in FSR as it is for affordable housing within a zone that allows for residential flat buildings. The Proposed Development has an FSR of 0.67:1 meeting this requirement. 7. The Site does not contain any items of heritage significance pursuant to cl 5.10 of the WLEP, nor is it located within any heritage conservation area; 8. Due to the location of the Site, I am satisfied that no issues with access to public utility infrastructure is anticipated (cl 6.2, WLEP). 9. Clause 7.1 of the WLEP relates to disturbance, exposure or drainage of acid sulfate soils which can cause environmental damage. The Site is identified as being affected by Class 5 acid sulfate soils. However, no works more than 5m below the natural ground surface are proposed. I am satisfied that no acid sulfate soils management plan is required. 10. Finally, the Site is not situated on flood prone land pursuant to cl 7.3 of the WLEP. 11. 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. I adopt the reasons given by the parties as set out above. 12. 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. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development application DA/222/2021 for the change of use of existing building (former nursing home) into a boarding house and associated works at 51 Peel St Toukley 2263 Lot 2 DP 850314, is determined by grant of consent, subject to the conditions of consent in Annexure A. E Espinosa Commissioner of the Court ********** Annexure A Amendments 08 August 2023 - Amended Annexure A published 08 August 2023 - Amended Annexure A published 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: 08 August 2023