Land and Environment Court New South Wales Medium Neutral Citation: Gupta v Muswellbrook Shire Council [2023] NSWLEC 1135 Hearing dates: Conciliation conference on 24 November 2022, 14 December 2022, 17 February 2023 Date of orders: 28 March 2023 Decision date: 28 March 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application DA32/2021 seeking consent for demolition of a dwelling and construction of a two storey boarding house at 41 Maitland Street, Muswellbrook is determined by granting development consent subject to the conditions set out in Annexure 'A'. (3) The Applicant to pay the Respondent's costs in the sum of $5,000.00, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. Catchwords: APPEAL – development application – boarding house – conciliation conference – agreement reached – orders made 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 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 34 Muswellbrook Local Environmental Plan 2009, cl 5.21 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Category: Principal judgment Parties: Nitin Gupta (Applicant) Muswellbrook Shire Council (Respondent) Representation: Counsel: M Evans (Solicitor) (Applicant) G Farland (Respondent) Solicitors: Whiteacre Legal (Applicant) Moray & Agnew (Respondent) File Number(s): 2022/217248 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings are an appeal against the refusal of a development application (DA2021-32) for the demolition of an existing dwelling and the construction of a two-storey boarding house at 41 Maitland Street, Muswellbrook. The development application was refused by Muswellbrook Council on 28 June 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 was held on 24 November 2022 and continued on 14 December 2022 and 17 February 2023. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is recorded in a signed agreement, the final version of which was filed on 22 March 2023, and follows the agreement of the Council to an amendment to the development application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. 4. The primary amendment to the development application is the change to the site layout such that the two-storey section of the proposed building is now adjacent to the south-east boundary, and the single storey section follows the alignment of the rear boundary. This change results in the proposed car park and driveway being relocated to the north-west side of the site, and the communal open space relocated to the western corner. This has resulted in a reduction in the proposed rooms of the boarding house, which is now for 19 single boarding rooms including the site manager's room. Two of the boarding rooms are accessible rooms. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Note on Jurisdiction, which sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Agreed Note, together with the documents referred to therein, the documents that are referred to in condition 1 of Annexure A and supplementary information provided by email on 20 March 2023. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The proposed development is for the purpose of a boarding house, which is a use that is permissible in the B2 Local Centre zone in which the site is located, pursuant to the Muswellbrook Local Environmental Plan 2009 (MLEP). * The proposed development complies with the applicable development standards for height and floor space ratio that arise pursuant to the MLEP. * Clause 5.21 of the MLEP concerns flood planning, and applies to the site. Based on the Flood Impact Assessment dated 7 February 2023, I have considered the matters in cl 5.21(3) and I am satisfied of the matters in cl 5.21(2). * The provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) apply to the development. The State Environmental Planning Policy (Housing) 2021 (SEPP (Housing)) commenced on 26 November 2021. Schedule 7A includes a savings provision, the effect of which is that the provisions of the SEPP ARH continue to apply to the development application. Clause 30A of the SEPP ARH requires consideration of "whether the design of the development is compatible with the character of the local area". Based on the facts outlined in the Agreed Note on Jurisdiction, the design of the amended development application, and the site inspection carried out at the commencement of the conciliation conference, I am satisfied that the design of the proposed development is compatible with the character of the local area. * At cl 30 of the SEPP ARH, consent cannot be granted unless certain requirements are met. Based on the architectural plans and the Statement of Environmental Effects dated February 2023, I am satisfied that each of the matters in cl 30(1) of the SEPP ARH are met by the proposed development. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for residential purposes, it is unlikely to be contaminated. * The site has frontage to Maitland Street, which is a classified road, and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) therefore applies. In accordance with s 2.119, it is not practicable to provide vehicular access to the land by a road other than the classified road. Nevertheless, based on the Traffic Impact Assessment dated February 2021 I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development, particularly given the low numbers of vehicle movements generated by the proposed development and the forward in and out movement of all vehicles accessing the development. Consistent with the requirements of s 2.119(2)(c) and based on the additional information provided by email on 20 March 2023, I am satisfied that the proposed development includes measures to ameliorate potential traffic noise or vehicle emissions, by orienting 17 of the boarding rooms to the side and rear boundaries, and by providing double glazed windows to the external rooms of the remaining two rooms. * The development application was notified on 3 May 2021 for 14 days, and an amended development application was notified on 16 September 2021 for 14 days. Five submissions were received with respect to each period of notification. I have considered the issues raised in those submissions. 1. I note also that cl 29 of the SEPP ARH sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for density and scale, building height, landscaped area, solar access, private open space, and accommodation size. Accordingly, consent cannot be refused on any of those grounds. 2. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 Court notes that Muswellbrook Shire Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the EPA Regulation 2000, to the Applicant amending Development Application DA2021-32 to rely upon the following plans and documents: Plan No. Revision No. Plan Title. Drawn by. Dated. A000 L Cover Sheet Duplex Building Design 08/02/2023 A001 L Site Analysis Duplex Building Design 08/02/2023 A002 L Site/Roof Plan Duplex Building Design 08/02/2023 A101 L Construction Management and Sediment Control Plan Duplex Building Design 08/02/2023 A201 L Proposed Ground Floor Duplex Building Design 08/02/2023 A202 L Proposed First Floor Plan Duplex Building Design 08/02/2023 A203 L Reflected Ceiling Plans Duplex Building Design 08/02/2023 A301 L Elevations Duplex Building Design 08/02/2023 A305 L Sections Duplex Building Design 08/02/2023 A401 L Winter Shadow Diagram Duplex Building Design 08/02/2023 A408 L Summer Shadow Diagram Duplex Building Design 08/02/2023 A503 L Area Calculations Duplex Building Design 08/02/2023 A504 L Shadows to Living Areas Duplex Building Design 08/02/2023 A601 L Perspectives Duplex Building Design 08/02/2023 A602 L Renders and Materials Schedule Duplex Building Design 08/02/2023 A603 L Kitchen and Laundry Details Duplex Building Design 08/02/2023 A901 L Notification Plan Duplex Building Design 08/02/2023 1/4 A Cover Sheet Art Science Landscapes 08/02/2023 2/4 A Landscape Plan Art Science Landscapes 08/02/2023 3/4 A Plant Palette Art Science Landscapes 08/02/2023 4/4 A Specifications and Details Art Science Landscapes 08/02/2023 SW01 J Stormwater Drainage Plan Ground Floor AE Consulting Engineers 07.03.2023 SW02 J Stormwater Drainage Plan First Floor AE Consulting Engineers 07.03.2023 SW03 J Stormwater Drainage Plan Roof Level AE Consulting Engineers 07.03.2023 SW04 J Stormwater Drainage Details Sheet One AE Consulting Engineers 07.03.2023 SW04B J Stormwater Drainage Details Sheet Two AE Consulting Engineers 07.03.2023 Document Version Prepared By. Dated. Title. No. Revised Statement of Environmental Effects Precise Planning February 2023 Plan of Management Not Specified December 2022 BCA Compliance Report B Silver End 05/02/2023 Stormwater Management Report 2 AE Consulting Engineers 7 February 2023 Flood Impact Assessment 5 AE Consulting Engineers 7 February 2023 Arborist Report Tattersall Lander Pty Ltd January 2023 Addendum to Arborist Report Apical Bushfire Planning Not Dated 1. The Court orders that: 1. The appeal is upheld. 2. Development application DA32/2021 seeking consent for demolition of a dwelling and construction of a two storey boarding house at 41 Maitland Street, Muswellbrook is determined by granting development consent subject to the conditions set out in Annexure 'A'. 3. The Applicant to pay the Respondent's costs in the sum of $5,000.00, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. J Gray Commissioner of the Court ********** 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: 28 March 2023