Land and Environment Court New South Wales Medium Neutral Citation: Appwam Pty Ltd v Burwood Council [2023] NSWLEC 1251 Hearing dates: Conciliation conference on 1 February 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court orders: (1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in the index annexed, marked "Annexure A". (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is upheld. (4) Development Application 10.2020.132.1, as amended during Land and Environment Court of New South Wales Proceedings No 2022/2277358, for demolition and construction of a mixed use development comprising ground floor commercial premises and 6 storey new age boarding house with 1 level basement car parking at 254-256 Liverpool Road, Enfield (Lot 12 and 13 in DP 48472) is approved subject to the conditions annexed, marked "Annexure B". Catchwords: DEVELOPMENT APPLICATION ––mixed use development – boarding house conciliation conference – agreement between the parties – orders Legislation Cited: Burwood Local Environmental Plan 2012 cll 1.2, 4.3, 4.4, 4.4A, 6.5 Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 4.568.2, 8.7 Environmental Planning and Assessment Regulation 2000, cl 3, Sch 2 cl 2A Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 26, 29, 30, 30A State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007, cl 101 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119, 2.120 Texts Cited: Burwood Development Control Plan 2013 Category: Principal judgment Parties: Appwam Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: J Cole (Solicitor)(Applicant) A Pearman (Respondent) Solicitors: J Cole Planning Solicitors (Applicant) Matthews Folbigg Lawyers (Respondent) File Number(s): 2022/277358 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 refusal, by Burwood Council (the Council), of Development Application DA 10.2020.132.1 (DA) for demolition and construction of a mixed use development comprising of ground floor commercial premises and a 6 storey new age boarding house with a 1 level basement parking at 254-256 Liverpool Road, Enfield (the Site). In exercising the functions of the consent authority on 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 was lodged with Council on 24 December 2022 for the construction of a 6 storey mixed use development containing commercial premises at ground level and a boarding house with 29 boarding rooms, one on-site manager's room and basement car parking for four vehicles. On, or about, 18 January 2021, the DA was referred to Transport for NSW (TfNSW) for comment pursuant to cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (now section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021). On, or about, 8 February 2021, TfNSW responded to the referral, stating no objection is raised subject to imposition of conditions prescribed in its response. 3. The Application was notified 20 January 2021 until 12 February 2021. Two submissions were received raising the following objections: * Traffic and parking impacts in the locality; * Noise impacts upon adjoining properties; * Privacy impacts upon adjoining properties; * Dust and vibration impacts upon adjoining properties during construction; * Loss of value of adjoining properties as a result of the development. 1. A letter dated 5 March 2021 requesting withdrawal of the DA was sent to the Applicant. On 6 April 2021 the Applicant submitted amended plans. 2. On 17 September 2021 the amended DA was refused by the Respondent under delegated authority. On 23 December 2021, an Application to review the determination of amended DA was lodged with the Respondent pursuant to s 8.2 of the EPA Act. On 13 September 2022, the Burwood Local Planning Panel determined to refuse the abovementioned s 8.2 Application. 3. On 16 September 2022 the Applicant filed the current Class 1 appeal at the Land and Environment 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, which was held on 1 February 2023 and at which I presided. 5. At and after the conciliation conferences, the Applicant agreed to make amendments (in addition to amendments already made in preparation for the conciliation conference) and provide further information to address Council's Statements of Facts and Contentions. 6. The amendments included: 1. Update architectural plans to: * Reduce number of boarding house units from 30 to 27 * Remove all ground floor boarding house units and replace with commercial area – increasing commercial space from 85m2 to 166.2m2 * Increase car parking spaces from 5 to 7 spaces (including one dedicated for car share) * Modifications to entry foyer to include storage lockers, seating area, relocate letterbox and disabled toilet * Removal of internal voids and replacement with common foyers * Relocate common room (and add common laundry) and common outdoor area and increase size of both * Increase floor to ceiling heights to 2.9m with detailed section demonstrating 2.7m floor to ceiling heights in living areas with 300mm deep bulk heads * Update materials and finishes particularly to western elevation 1. Provide statutory declaration, copies of offer made, valuation and basic development plans in response to isolated site contention; 2. Update supporting reports including plan of management, landscape plan, waste management plan, signed survey, access report, BCA report, stormwater plans and costs survey report; 3. Prepare submission including data and studies in relation to car share arrangement; and 4. Car share arrangement plan of management 5. Draft planning agreement 1. The Council, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the DA in accordance with the amended plans and material listed at Annexure A. 2. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 March 2023. 3. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 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 power under s 4.16 of the EPA Act. 5. 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. 6. In this case, 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 [16] to [32] below. Satisfaction of Jurisdiction 1. The relevant jurisdictional matters in relation to the Burwood Local Environmental Plan 2012 (BLEP) are: Burwood Local Environmental Plan 2012 (BLEP) 1. The Site is zoned B2 Local Centre under the BLEP. Boarding houses and commercial premises are permissible with consent in this zone. 2. Boarding house developments are permissible with consent in this zone under cl 26 and of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARHSEPP). 3. The maximum allowable height is 20m under cl 4.3 of the BLEP. The Application proposes a height below 20m and I am satisfied from the evidence that cl 4.3 is complied with. 4. The maximum allowable floor space under cl 4.4 of the BLEP is 2.5:1. The residential accommodation component must not exceed 2.2:1 under cl 4.4A of the BLEP. A bonus of 0.5 applies to the site in accordance with cl 29(1)(c) of the ARHSEPP. As a consequence, a floor space ratio of 3:1 applies to the Site as a whole and a ratio of 2.7:1 applies to the residential component. The Application is for 2.43:1 for the residential component and thus complies with clause 4.4A and 2.99:1 for the Site overall. The parties agree and I am satisfied from the evidence that the BLEP controls for FSR are met by the proposal. 5. Clause 6.5 of the BLEP requires the consent authority to be satisfied that the development exhibits design excellence. In addressing the Council's other contentions (see below) in relation to floor to ceiling heights, lobby and common space size and materials and finishes, the parties agree that design excellence is achieved and I am satisfied from the evidence that the proposed development exhibits design excellence. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. The application of the bonus FSR under the ARHSEPP is set out above. I am satisfied that the DA complies with the standards for boarding house developments in cl 30(1) of the ARHSEPP as set out below: 1. Clause 30(1)(a) requires at least one communal living room will be provided if the boarding house has five or more boarding rooms. The proposed development has more than five boarding rooms and a communal living room is located on level 5. 2. Clause 30(1)(b) requires no boarding room to have a gross floor area of more than 25m2 excluding kitchen and bathrooms. No boarding room in the proposed development has a GFA greater than 25m2. 3. Clause 30(1)(c) requires no boarding room will be occupied by more than 2 adult lodgers. The Plan of Management dated February 2023 includes a boarding house rule which restricts the maximum number of occupants to two adults except room 502 and 503 where they are restricted to single occupancy. 4. Clause 30(1)(d) requires adequate bathroom and kitchen facilities will be available. This is satisfied given each boarding room would have its own bathroom and kitchen facilities. 5. Clause 30(1)(e) requires a dwelling for onsite manager to be provided if the boarding room accommodates 20 or more lodgers. 6. Clause 30(1)(g) requires that no part of the ground floor of boarding houses will be used for residential purposes where land is zoned primarily for commercial purposes. The amendments to the plans have resulted in no boarding house units being located at ground floor level. 7. Clause 30(1)(h) requires that least one parking space will be provided for a bicycle, and one will be provided for a motor cycle for every 5 boarding rooms. The development will have 5 motorcycle parking spaces and 7 bicycle parking spaces for 27 boarding rooms. 1. Clause 30A of the ARHSEPP stipulates consent must not be granted unless the consent authority has taken into consideration whether the design of the development is compatible with the character of the local area. The area immediately surrounding the site is a small commercial strip along Liverpool Road, which incorporates a mixture of multi-storey and commercial use developments. I am satisfied from the evidence and my observations of the Site, that the proposed development's design is in harmony with the buildings around it and the character of the street. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. Subsection 2.119(1)(b) and (2)(c) and 2.120(1)(a) and (3) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires consideration of the impact of road traffic noise on the boarding house. An Acoustic Report has been provided addressing this. 2. A referral to TfNSW was made pursuant to clause 101 of the State Environmental Planning Policy (Infrastructure) 2007 (now s 2.119 of the Infrastructure SEPP) on 8 January 2021. On 18 February 2021, TfNSW advised it has no objection to the proposed development, subject to conditions of consent prescribed by TfNSW. Those conditions have been incorporated into the conditions of consent annexed to the s 34 agreement. State Environmental Planning Policy (Building Sustainability Index: Basix) 2004 1. The proposed boarding house will accommodate more than 12 residents, and does not fall within the definition of BASIX affected building, and hence it will not fall within the definition of BASIX affected development, in cl 3 "Definition" to the Environmental Planning and Assessment Regulation 2000. As the proposed development is not a BASIX affected development, a BASIX certificate is not required to accompany the development application under cl 2A of Sch 2 of the Environmental Planning and Assessment Regulation 2000. Although the development application was lodged prior to the introduction of exemption of certain boarding houses from BASIX requirement under the Environmental Planning and Assessment Amendment (Housing) Regulation 2021 (2021 Housing Regulation), this exemption applies to the present application since the 2021 Housing Regulation contains no savings provision. Burwood Development Control Plan 2013 (BDCP) 1. There are several controls in the Burwood Development Control Plan 2013 (BDCP) which were raised in Council's Statement of Facts and Contentions as relevant to the Application. 2. Section 3.2.9 of the BDCP requires development over 10m to generally have a site area of 500m2. The site is 367m2. Section 5.4 P2 of the BDCP requires boarding houses to have a minimum frontage of 17m. The site has a width of 10.71m to Liverpool Road and 10.16m to the rear boundary. I am satisfied from the evidence that the Site can be developed and the proposed development represents an orderly and economic redevelopment of the land in the circumstances. It is appropriate, in this instance that these controls in BDCP be applied flexibly, due to the inability to acquire the neighbouring property (refer [30]). 3. Section 3.5.2 requires built form not exceed a 45 degree height plane measured from 1.8m above southern boundary of Legends Lane. Amendments made to the plans prior to the conciliation conference addressed this issue and a 45 degree height line is shown in Section A, Drawing Sheet 116. 4. Section 5.4.6 P29 requires a communal living area be provided with a minimum 72.5m2. Amendments to the plan have resulted in a common area of 67m2 internally, adjacent to 30m2 outdoor space (97m2) as well as a 15.9m2 foyer space. 5. Section 5.4.4 requires floor to ceiling heights of 2.7m and Section 5.4. requires floor to floor heights of a minimum 3.1m. Amendments to the plans have resulted in 2.9m floor to floor heights with 2.7m over living areas with restricted 300mm deep bulkhead to accommodate services. Details provided demonstrate how services are accommodated in this bulkhead. This achieves the intention of the controls in enabling services to be provided whilst still providing 2.7m floor to ceiling space in living areas. 6. Clause 3.2.16 require common area widths of 2m and 2.5m depth in front of lifts and fire stairs. Amendments to the plans have achieved these minimum widths. 7. Section 5.4 requires integration of mailbox and postal facilities. Amendments to the plans have achieved this integration. 8. Part 3.9 and Table 2 of the BDCP requires 17 parking spaces. The application, as amended, proposes 7 parking spaces. As part of the Application, a voluntary planning agreement was approved and notified by Council compensating for 4 parking spaces. As a consequence, there is a shortfall of 6 parking spaces. The Application proposes one of the car spaces be dedicated as a share car space operated by the boarding house. This is addressed in car share submission and car share management plan. It is noted that, had the Application been lodged under the current rates set in the State Environmental Planning Policy (Housing) 2021, there would have been no shortfall in parking as a rate of 0.2:1 would have applied given the location of the Site in an accessible area. In the circumstances of the individual facts of the application, the voluntary planning agreement and the surveyed availability of on street parking, the parties agree, and I am satisfied that the private car share arrangement is an acceptable environmental impact for the technical non-compliance of 6 spaces. 9. Contention 11 raised site isolation (Section 3.2.6 of the BDCP) in relation to 258 Liverpool Road. The Applicant provided evidence that the majority owner of 258 Liverpool Road was made an offer based on a valuation which was refused. The Applicant also prepared and provided block plans demonstrating how the neighbouring site could be redeveloped in accordance with Section 3.2.6 of the DCP. 10. Section 3.2.2 require developments to articulate elevations and limit painted masonry. The amended plans have amended the materials and finishes to address Council's contentions in relation to the western façade including textured concrete ponds with accented joints and varied colours, brickworks and recesses. 11. Section 5.4.11 6 requires fire management practices and compliance with the Building Code of Australia. An updated Building Code of Australia report has been provided to satisfy this requirement. Conclusion 1. 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. 2. 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. 3. The Court notes that the parties have reached an agreement in a conciliation conference conducted pursuant to s 34(3) of the LEC Act, as to a decision that the Court could have made in the proper exercise of its functions. Orders 1. The Court orders: 1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in the index annexed, marked "Annexure A". 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application for development consent in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is upheld. 4. Development Application 10.2020.132.1, as amended during Land and Environment Court of New South Wales Proceedings No 2022/2277358, for demolition and construction of a mixed use development comprising ground floor commercial premises and 6 storey new age boarding house with 1 level basement car parking at 254-256 Liverpool Road, Enfield (Lot 12 and 13 in DP 48472) is approved subject to the conditions annexed, marked "Annexure B". L Sheridan Acting Commissioner of the Court ********** Annexure A Annexure B 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: 24 May 2023