Land and Environment Court New South Wales Medium Neutral Citation: SSE Corp Pty Ltd v Cumberland Council [2023] NSWLEC 1407 Hearing dates: Conciliation Conference 22 May, 15, 22 and 27 June 2023 Date of orders: 28 July 2023 Decision date: 28 July 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000, with such payment to be made within 28 days of orders being made. (2) The applicant's written request prepared by Andrew Martin Planning dated 21 June 2023 pursuant to cl 4.6 of the Holroyd Local Environmental Plan 2013 (HLEP 2013) to vary the building height development standard in cl 4.3 of the HLEP 2013 is upheld. (3) The appeal is upheld. (4) Development Application No. DA2021/0593 for the construction of an 83 room boarding house with manager's residence at Lots A and B in DP 416471, being Nos. 5 and 7A Octavia Street, Toongabbie, is determined by the grant of consent subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPEAL – demolition of existing structures – boarding house – justification of contravention of height of building development standard - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Cumberland Local Environmental Plan 2021, cl 1.8A Environmental Planning and Assessment Regulation 2021, s 38 Holroyd Local Environmental Plan 2013, cll 2.5, 4.3, 4.4, 4.6, 5.1, 5.10, 6.1, 6.2, 6.3, 6.5, 6.6, 6.7, 6.8, 6.9, 6.11 State Environmental Planning Policy (Affordable Rental Housing) 2009, Pt 2, cll 26, 27, 28, 29, 30, 30A State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10, ss 10.2, 10.18 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, Ch 2, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: SSE Corp Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: A Gough (Solicitor)(Applicant) C McFadzean (Solicitor)(Respondent) Solicitors: Storey & Gough (Applicant) Cumberland Council (Respondent) File Number(s): 2022/377269 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 2021/0593 for demolition of existing structures and construction of a 5-storey boarding house containing 87 boarding rooms and a boarding house manager's room (total 88 rooms) (the Proposed Development) at 5-7A Octavia Street, Toongabbie legally described as Lots A and B in DP 416471 (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 22 May, 15, 22 and 27 June 2023. I 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. In response to the matters discussed at the conciliation conference, namely the Statement of Facts and Contentions (SOFAC) and the reasons given for the Respondent's refusal of the development application, the Applicant prepared amended plans to reduce the height, bulk and scale of the development. The changes to the development proposed by the application include: 1. A redesign of the basement size, carpark layout, allocation of car/motorcycle/bicycle spaces and a change to driveway ramps. 2. A reduction in the height of the proposed development through changes to slab design and a lowering of the ground floor level. 3. An increase is setbacks from sides and the rear boundaries. 4. The deletion of 4 boarding rooms. The Proposed Development now provides for 83 boardings rooms and a manager's room. 5. The provision of a waste storage area on the ground level, inclusive of a shute system from upper levels. 1. Further to the amended plans, additional expert reports were prepared to address the contentions relating to the adequacy of the information, including a Contamination Assessment, driveway design profiles, structure certification and swept path diagrams. 2. The submissions of objectors are a relevant consideration by the Respondent under s 4.15(1)(d) of the EPA Act. Notification of the original development application occurred between 1 and 21 November 2021. In response to the notification, 5 letters of objection were received by the Respondent. The parties agree that the submissions of objectors do not warrant the refusal of the development application or raise matter which impose a jurisdictional limit on the Court. The amendment of the development application does not generate a need for the plans and reports before the Court to be renotified and the reason given by the parties is that the amendments collectively reduce impacts on adjoining residential development and the public domain, provide a suitable response to the constrains of the site, and achieve a development of a suitable bulk and scale for the site, consistent with the character of the area. 3. Therefore, the parties are of the view that the amended plans and documentation, which the applicant has provided, have adequately addressed the contentions set out in the SOFAC. 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 the terms of cl 4.6 of the Holroyd Local Environmental Plan 2013 (HLEP) to vary a development standard as well as other provisions from relevant planning instruments. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note which I have considered, and I provide a relevant summary below as reasons for my decision. 7. I am satisfied that a BASIX Certificate is not required pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 because the proposed boarding house involves accommodation for greater than 12 residents and therefore the Proposed Development does not satisfy the definition of a "BASIX building" contained in the Dictionary from the Environmental Planning and Assessment Regulations 2021. 8. In accordance with s 4.6(4) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) I am satisfied that: 1. the land is not within an investigation area; 2. the land does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the Environment Protection Authority, Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land 1998 (contaminated land planning guidelines); and 3. there is sufficient knowledge, or, the previous residential (and lack of Table 1 use of the land) exists. 1. I note that, s.4.6(2) of the Resilience and Hazards SEPP does not oblige the provision of a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. However, s.4.6(1) provides that a consent authority must not consent to the carrying out of development unless: 1. it has considered whether the land is contaminated, and 2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and 3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. The Applicant has filed a Preliminary Site Investigation prepared by Sydney Environmental Group, dated 14 June 2023, which has assessed the condition of the property and concludes that the "site is generally considered suitable (from a land contamination perspective) for the proposed future land use setting." 2. The State Environmental Planning Policy (Housing) 2021 (Housing SEPP), inclusive of boarding house provisions at Ch 2, does not apply to the Proposed Development by virtue of savings provisions at Sch 7A cl 2(1)(a). As result, the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) apply to the Proposed Development. 3. The Proposed Development is defined as a boarding house (Pt 2, Div 3 of ARH SEPP) and boarding houses are permissible with consent pursuant to cll 26, 27 and 28, ARH SEPP. 4. The ARH SEPP provides minimum standards that cannot be used to refuse consent (cl 29). These standards are set out in the following table provided by the parties: Element Standard Proposal Conformity Floor space ratio 1.70:1 1.697:1 Yes 15m 15.7m No Building height Landscaped area Landscape treatment of the front setback area is compatible with the streetscape Compatible Yes Solar access to communal living room One or more rooms receive at least 3 hours direct sunlight between 9am and 3pm in mid –winter 3+ hours Yes Private open space Lodgers - 20m2 with a minimum width of 3m. Common open space of 155 m2, all >3m Yes Manager - 8m2 with a minimum width of 2.5m 14.3 m2 > 2.5m Yes Parking Lodgers - minimum 42 spaces 42 spaces Yes Room size excluding kitchen and bathroom 12m2 for single room > 12m2 for single rooms Yes 16m2 for double room >16m2 for double rooms Yes 1. There are additional minimum standards for boarding houses provided in cl 30 of the ARH SEPP, which are set out in the following table provided by the parties: Element Standard Proposal Compliance Communal living room At least 1 room 2 rooms Yes Maximum floor area per room (exc kitchen and bathroom) 25m2 < 25m2 Yes Maximum lodgers per room 2 2 Yes Bathroom and kitchen facilities Adequate facilities for each lodger Adequate facilities available Yes Manager's unit Required if more than 20 lodgers Manager's unit provided Yes Motorcycle parking 17 spaces 17 spaces Yes Bicycle parking 17 spaces 18 spaces Yes 1. Finally, cl 30A of the ARH SEPP provides that a consent authority must not grant consent to a boarding house unless it has taken into consideration whether the design of the development is compatible with the character of the local area. The Proposed Development, as now before the Court, has the appearance of a residential flat building and the parties agree that its design is compatible with the character of the local area. 2. There are a number of provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) that are relevant to the Proposed Development. 3. Firstly, the Site is not mapped as being within a Foreshores and Waterways Area, a strategic foreshore site, or a wetland protection area. Nor is the Site shown as containing a heritage item (s 10.2(2), Biodiversity and Conservation SEPP). 4. Secondly, s 10.18(a) of the Biodiversity and Conservation SEPP requires matters referred to in Ch 10 Pt 10.3 Div 2 of the Biodiversity and Conservation SEPP be taken into consideration by the consent authority before granting development consent. The Court notes that Ch 10 of the Biodiversity and Conservation SEPP applies to the Proposed Development notwithstanding it has since been repealed. The Respondent's position on Div 2 matters, by section number, is as follows: "10.19 The development will have a negligible and acceptable impact on biodiversity, ecology and environmental protection. Subclauses (a)-(i) raise no matters that warrant refusal of the development. 10.20 The development will have no impact upon public access to, and use of, the foreshore and waterway. 10.21 The development has no implications for a working harbour. 10.22 The development has no implications for use of the waterways or foreshore. 10.23 The development has no impact upon the scenic quality of the waterways and foreshore. 10.24 The development has no impact upon views." 1. Given the absence of significant biodiversity on the Site, the Court reaches the requisite state of satisfaction required by the Biodiversity and Conservation SEPP. 2. The last planning instrument for consideration of the satisfaction of jurisdictional prerequisites is the HLEP which provides that the site is zoned R4 High Density Residential. The Proposed Development is permissible with consent in the zone. 3. The parties agree that the Proposed Development is not antipathetic to the objectives of the R4 High Density Residential zone which are listed in the HELP as follows: To provide for the housing needs of the community within a high density residential environment. To provide a variety of housing types within a high density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The Proposed Development complies with the floor space ratio (FSR) development standard. Pursuant to cl 4.4 of the HLEP, a maximum floor space ratio of 1.2:1 applies to the Site however a 0.5:1 bonus applies due to cl 29 of the ARH SEPP. The FSR of the Proposed Development is 1.697:1 which complies with the standard. 2. The Proposed Development has a building height of 15.68m which contravenes the maximum building height development standard of 15m.The Applicant relies on a written request prepared by Andrew Martin Planning dated 21 June 2023 (Written Request) seeking to justify the contravention of the building height standard imposed by cl.4.3 of the HLEP in accordance with the terms of cl 4.6 of the HLEP. The Written Request demonstrates that compliance with the development standard is unreasonable and unnecessary (subclause 4.6(3)(a)) and that there are sufficient environmental planning grounds to justify contravening the height standard (subclause 4.6(3)(b)). The Written Request also provides an assessment of the proposed development against the objectives of the development standard and against the objectives of the R4 zone. 3. The Court is satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.3 of the HLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the help. Furthermore, the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. 4. There are a number of other provisions of the HLEP which might otherwise raise jurisdictional prerequisite but are not relevant in relation to the Proposed Development as follows: 1. The Site does not contain a heritage item, is not within a heritage conservation area and is not within close proximity to a heritage item (cl 5.10). 2. The site is not marked on: 1. the Additional permitted Uses map (cl 2.5); 2. the Land Reservation Acquisition map (cl 5.1); 3. the Acid Sulfate Soils map (cl 6.1); 4. the Biodiversity map (cl 6.5); 5. the Riparian Lands and Watercourses map (cl 6.6); 6. the Site Specific Provisions map (cl 6.9); or 7. the Design Excellence map (cl 6.11). 1. Development consent is required for the proposed earthworks (cl 6.2 of HLEP). In relation to required considerations at cl 6.2(3) of the HLEP the parties agree as follows: 1. the development will not disrupt of detrimentally effect drainage patterns and soil stability in the locality; 2. the earthworks are related to and necessary for the future use / redevelopment of the land; 3. the quality of soil to be excavated is unknown but conditions of consent can be imposed to ensure it is disposed of to an appropriate location; 4. setbacks to the basement and appropriate construction techniques can ensure the excavation has insignificant and acceptable amenity effects for adjoining properties; 5. fill is not required to accommodate the development. Conditions of consent may be imposed for the disposal of excavated material at an appropriate location; 6. the likelihood of disturbing relics is remote and not of determinative weight; 7. the site is not proximate to and will have negligible to no impact upon a waterway, drinking water catchment or environmentally sensitive area; and 8. in the event of consent being granted, conditions should be imposed requiring sediment and erosion control during site works. 1. Clause 6.3 of the HLEP requires the consent authority to be satisfied that various essential services are available or that adequate arrangements have been made to make them available. In that regard, the Site is serviced by adequate water supply, electricity supply, sewage disposal, stormwater drainage and suitable road access is available or can be made available. 2. Clause 6.7 of the HLEP provides stormwater management controls. In relation to considerations at cl 6.7(2) the parties agree as follows: 1. the proportion of water permeable surfaces is within reasonable expectation for this form of development; 2. an onsite stormwater retention system has not been provided and having regard to the nature of the development is not overly practicable and not assessed as being essential; and 3. adverse impacts of stormwater runoff on adjoining properties, native vegetation and receiving waters, to the extent they arise, can be minimised and mitigated by conditions including by the provision of sediment and erosion controls. 1. The site is marked on the Salinity Map as having moderate salinity potential. In relation to clauses 6.8(3) and 6.8(4) the parties agree that: 1. the Proposed Development is not likely to have any impact on salinity processes on the land; and 2. salinity is not likely to have an impact on the Proposed Development in any meaningful way. 1. It is relevant to note that the Cumberland Local Environmental Plan 2021 (CLEP) came into force on 5 November 2021, some 16 days after the development application for the Proposed Development was lodged with the Respondent council. Pursuant to cl 1.8A of the CLEP, development applications made before the commencement of the CLEP which were not finally determined as of 5 November 2021 are to be determined as if the CLEP had not commenced. Nevertheless, the parties note the following relevant provisions of the CLEP in relation to the Proposed Development: 1. The Site continues to be zoned R4 Residential under the CLEP. The zone objectives are: To provide for the housing needs of the community within a high density residential environment. To provide a variety of housing types within a high density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment. To encourage residential development that maintains the amenity of the surrounding area. 1. Boarding houses remain permissible in the R4 zone with consent. 2. Maximum building height and FSR development standards remain at 15m and 1.2:1 respectively. 1. For the reasons set out above, 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. 2. 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. Notations: 1. The Court notes that: 1. Cumberland Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA2021/0593 in accordance with the documents listed below: Plan name Drawing Number Prepared by Dated Amended Architectural Plans Cover page A1-00 (Rev I) CK Design 09/06/23 Site Analysis A1-03 (Rev I) CK Design 09/06/23 Site Plan A1-04 (Rev I) CK Design 09/06/23 Basement 2 Plan A1-05 (Rev I) CK Design 09/06/23 Basement 1 Plan A1-06 (Rev I) CK Design 09/06/23 Ground Floor Plan A1-07 (Rev I) CK Design 09/06/23 Level 1 A1-08 (Rev I) CK Design 09/06/23 Level 2 A1-09 (Rev I) CK Design 09/06/23 Level 3 A1-10 (Rev I) CK Design 09/06/23 Level 4 A1-11 (Rev I) CK Design 09/06/23 Roof Plan A1-12 (Rev I) CK Design 09/06/23 Elevations A1-13 (Rev I) CK Design 09/06/23 Elevations A1-14 (Rev I) CK Design 09/06/23 Sections A1-15 (Rev I) CK Design 09/06/23 Shadow Diagrams A1-16 (Rev I) CK Design 09/06/23 Calculation Sheet A1-17 (Rev I) CK Design 09/06/23 3D Perspective A1-18 (Rev I) CK Design 09/06/23 3D Perspective A1-19 (Rev I) CK Design 09/06/23 3D Photo Montage A1-20 (Rev I) CK Design 09/06/23 Building Height Plane A1-21 (Rev I) CK Design 09/06/23 Schedule of Finishes A1-22 (Rev I) CK Design 09/06/23 Fence Details A1-23 (Rev I) CK Design 09/06/23 Evacuation Plan A1-24 (Rev I) CK Design 09/06/23 Elevational Shadow Diagrams A1-25 (Rev I) CK Design 09/06/23 Elevational Shadow Diagrams – ADG Envelope A1-26 (Rev I) CK Design 09/06/23 Sun Eye Views A1-27 (Rev I) CK Design 09/06/23 Site Context A1-28 (Rev I) CK Design 09/06/23 Views from Aurelia Street A1-29 (Rev I) CK Design 09/06/23 Views from Toongabbie Road A1-30 (Rev I) CK Design 09/06/23 Driveway Profile Plans Cover Sheet CV0 (Rev C) Prime Engineering Consultants 23/05/23 General Notes CV1 (Rev C) Prime Engineering Consultants 23/05/23 General Arrangement Plan CV2 (Rev C) Prime Engineering Consultants 23/05/23 CV3 (Rev C) Prime Engineering Consultants 23/05/23 Driveway Long Section – Basement 1 CV4 (Rev C) Prime Engineering Consultants 23/05/23 Driveway Long Section – Basement 1 CV5 (Rev C) Prime Engineering Consultants 23/05/23 Driveway Long Section – Basement 1 CV6 (Rev C) Prime Engineering Consultants 23/05/23 Supporting Documentation Swept Path Diagrams Blue Horizon Traffic Engineers 28/05/23 Traffic Statement Blue Horizon Traffic Engineers 19 May 2023 Structural Design Certification Prime Engineering Consultants 02/06/23 Stage 1 Preliminary Site Investigation Sydney Environmental Group 14/06/23 Traffic Statement Blue Horizon Traffic Engineers 19/05/23 Clause 4.6 Written Request Andrew Martin Planning 22/05/23 1. The amended development application was filed with the Court on 27 June 2023. Orders: 1. The Court orders: 1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000, with such payment to be made within 28 days of orders being made. 2. The applicant's written request prepared by Andrew Martin Planning dated 21 June 2023 pursuant to cl 4.6 of the Holroyd Local Environmental Plan 2013 (HLEP 2013) to vary the building height development standard in cl 4.3 of the HLEP 2013 is upheld. 3. The appeal is upheld. 4. Development Application No. DA2021/0593 for the construction of an 83 room boarding house with manager's residence at Lots A and B in DP 416471, being Nos. 5 and 7A Octavia Street, Toongabbie, is determined by the grant of consent subject to conditions contained in Annexure A. E Espinosa Commissioner of the Court Annexure A Architectural Plans Landscape Plans Stormwater Plans ********** 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 July 2023