Land and Environment Court New South Wales Medium Neutral Citation: Fan v City of Canada Bay Council [2023] NSWLEC 1316 Hearing dates: Conciliation conference on 16 June 2023 Date of orders: 16 June 2023 Decision date: 16 June 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application no. 2021/0260, seeking consent for the demolition of the existing structures, consolidation of two lots and construction of a two (2) storey boarding house comprising of 30 rooms and a manager's room (31 rooms in total), communal living room, basement carpark and associated site work, at Lot A and Lot B in DP 945900 known as 15-17 Cooper Street, Strathfield NSW 2135, subject to the conditions of consent in Annexure 'A'. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Canada Bay Local Environmental Plan 2013, cll 2.3, 5.10, 6.2, 6.3, 6.12, 6.13 Environmental Planning and Assessment Act 1979, s 4.16 Environmental Planning and Assessment Regulation 2021, s 27 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 29, 30, 30A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Dylan Fan (Applicant) City of Canada Bay Council (Respondent) Representation: Counsel: D Tyrell (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent) Solicitors: Tyrells Planning Law (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2022/251389 Publication restriction: Nil Judgment 1. These proceedings arise following the City of Canada Bay Council's refusal of the applicant's development application (DA-2021/0260) (DA) for demolition works and consolidation of two lots to allow the construction of a two (2) storey boarding house comprising of 30 rooms and a manager's room (31 rooms in total), a communal living room with basement carpark and associated site works at 15-17 Cooper Street, Strathfield, identified as Lot A and Lot B in DP945900 (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 was held on 16 June 2023. I presided over the conciliation conference. 3. During the conciliation the parties resolved the contentions between them and filed a signed written document setting out the terms of the decision in accord with s 34(10) of the LEC Act. The parties' decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 to grant consent to the DA 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 decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional preconditions that must be satisfied before this function can be exercised. These matters are identified in the parties' joint jurisdictional submission accompanying the s34 agreement. After a consideration of the evidence, I accept the parties' joint submission that the proposed development satisfies all jurisdictional preconditions for the following reasons. State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) 1. ARH SEPP was in force at the time of the DA lodgement and was repealed at the time of gazettal of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing). SEPP Housing was gazetted 26 November 2021 and introduced new provisions for boarding house developments. Schedule 7 of the SEPP Housing includes savings and transitional provisions for development applications submitted prior to 26 November 2021, but not yet determined. This DA was submitted on 17 September 2021 and therefore the savings provisions under Sch 7 may be invoked so that ARH SEPP continues to apply. Clause 26 and 27 – Land and Development to which this Division applies 1. The site is zoned R3 Medium Density Residential. Boarding houses are permissible in this zone with consent. The proposed boarding house is development that is located on land within the R3 zone. Clauses 26 and 27 are satisfied. Clause 29 – Standards that cannot be used to refuse consent 1. The Canada Bay Local Environmental Plan 2013 (CBLEP) applies to the site. The maximum FSR for the development is 1:1 (841sqm) and the proposed FSR is 0.98:1 (817sqm). Clause 30 – Standards for boarding houses 1. The Statement of Environmental Effects prepared by JL Town Planning dated September 2021 provides a detailed assessment of the proposed development against this clause at Part 4.5. The Council accepts and I note that the proposed development satisfies this clause. 2. The parties are agreed, and I accept that the development complies with the CBLEP controls for: * Building height: The maximum height permitted is 8.5m. The proposed development, as amended, is less than 8.5m (see Drawing 09, Elevations, Section, Rev F of Architectural Plans). * Landscape area: The front setback is compatible with the streetscape (see Landscape Plans prepared by StudioIZ, Rev H, dated 15 May 2023, and SEE Part 4.5). * Solar access: The DA, as amended, achieves compliance with 3 hours solar access to the communal living (see Drawings DA28 & DA29, Rev F of Architectural Plans). * Private open space: More than 20m2 of open space is provided (see Drawing 05, Ground Floor Plan, Rev F of Architectural Plans). * Parking: Nine car spaces including 1 accessible space, 6 motorbike spaces and 6 bicycle spaces are provided (see Drawing 04, Basement Floor Plan, Rev F of Architectural Plans). Fifteen car spaces are required. The parties are agreed that the proposed parking is appropriate and refer to the Traffic and Parking Impact Assessment prepared by Motion Traffic Engineers dated December 2022, part 4.2 which states: "the proposed development site is located at a convenient walking distance from Strathfield Train Station and Bus Interchange and the retail shops near the station. Additionally, Strathfield Plaza is also located at approximately 300 metres to the south of the site on the other side of Strathfield Station. This shopping centre is one of the largest shopping centres in Sydney's inner west and is catered with supermarkets, restaurants, banks, cafes and other specialty shops. Overall, the site is located at the prime location that the resident's daily errands will unlikely to require a car." * Provision of minimum boarding room sizes: The single rooms are greater than 12m2 and less than 16m2 and the double rooms are greater than 16m² (see Drawing 17, Typical Room, Rev F of Architectural Plans). Clause 30A – Character of local area 1. The Statement of Environmental Effects prepared by JL Town Planning dated September 2021 provides a detailed assessment of the character at Part 4.5 and the parties accept that the development is compliant. I accept that the proposed development satisfies this clause. Clause 30AA – Boarding houses in Zone R2 Low Density Residential 1. A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms. 2. The subject site is zoned R3 Medium Density Residential. The number of boarding rooms can exceed 12. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) 1. Section 4.6 of the RH SEPP requires the Court to consider whether the site is contaminated before the DA is determined. 2. The site is situated within a R3 zone and has been zoned for residential purposes for an extended period of time. There is no evidence of potentially contaminating land activities occurring on the site. BASIX requirements 1. The DA is supported by BASIX Certificate No. 1240244M_03 dated 27 March 2023. This certificate confirms that the project passes the BASIX requirements. 2. The BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021. CBLEP 1. Clause 2.3 of CBLEP indicates that regard must be had to the zone objectives when determining the DA. The zone objectives for the R3 zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The parties agree and I accept that the proposed development, as amended, is compatible with the R3 zone objectives. Clause 5.10 Heritage 1. The site is not a heritage item and is not within a heritage conservation area for the purposes of the CBLEP. Clause 6.2 Earthworks 1. Earthworks are proposed as part of the subject application and include the construction of the proposed basement. The extent of proposed excavation associated with the proposal including setbacks is detailed on the Plans prepared by HRK+, Issue F, DA03. A Geotechnical Assessment has been undertaken for the site by Eswnman Pty Ltd and is included as part of the information accompanying the application. It is considered that subject to compliance with the recommendations of the report of Eswnman Pty Ltd, the proposal will not result in any unreasonable impacts. On that basis I accept that the proposal satisfies the requirements of cl 6.2 of the CBLEP. Clause 6.3 Flood Planning 1. The site is not within the flood planning area for the purpose of the CBLEP. Clause 6.12 Affordable housing 1. The site is not located within the affordable rental housing contribution scheme map. Clause 6.13 Development in areas subject to aircraft noise 1. The site is not identified as being affected by aircraft noise. Public notification 1. The DA was notified by the Council from 30 September 2021 to 21 October 2021 and 2 submissions were received and considered by the Council. The Council is satisfied that the objections have been satisfactorily addressed by the proposed development and the agreed conditions of consent. Conclusion 1. As the parties' decision is a decision that the Court can make in accordance with s 34(3) of the LEC Act, I now make orders in accordance with the parties' agreement. 2. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application no. 2021/0260, seeking consent for the demolition of the existing structures, consolidation of two lots and construction of a two (2) storey boarding house comprising of 30 rooms and a manager's room (31 rooms in total), communal living room, basement carpark and associated site work, at Lot A and Lot B in DP 945900 known as 15-17 Cooper Street, Strathfield NSW 2135, subject to the conditions of consent in Annexure 'A'. ………………. S Dixon Senior Commissioner of the Court Annexure A (526538, 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: 26 June 2023