Land and Environment Court New South Wales Medium Neutral Citation: Prosperity Group 888 Pty Ltd v Penrith City Council [2023] NSWLEC 1421 Hearing dates: Conciliation conference on 17 May 2023; 7 & 19 July 2023 Date of orders: 02 August 2023 Decision date: 02 August 2023 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the development application, in the sum of $5,000 within 28 days. (2) The appeal is upheld. (3) Development consent is granted to development application no. DA22/1021 for the demolition of existing structures and construction of a two-storey co-living housing development and associated works at 12-14 Edna Street, Kingswood, subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3) Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010, cll 2.3, 2.7, 4.3, 7.1, 7.4, 7.6, 7.7, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Housing) 2021, ss 67, 68, 69, 70; Pt 3, Ch 3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: Penrith Development Control Plan 2014 Category: Principal judgment Parties: Prosperity Group 888 Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: J Reid (Applicant) A Avery (Solicitor) (Respondent) Solicitors: Penrith City Council (Respondent) File Number(s): 2022/375439 Publication restriction: Nil Judgment 1. These proceedings arise following Penrith City Council's refusal of the applicant's development application (DA22/1021) for the construction of a two-storey co-living housing development containing 22 rooms (6 x single rooms and 16 x double rooms), with onsite parking for 5 cars and associated works at 12-14 Edna Street, Kingswood NSW 2747, being Lots 95 and 96 in DP 241989 (site). 2. The Court referred the application to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 17 May 2023. I presided over the conciliation conference. At the conference the Council agreed to the applicant amending its application and the amendments facilitated an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The 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, as amended subject to agreed conditions. 3. 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. 4. After a consideration of the evidence filed with the s34 agreement I accept the parties' joint written submission that the proposed development satisfies all jurisdictional preconditions for the following reasons. Penrith Local Environmental Plan 2010 (LEP) 1. The site is zoned R3 Medium Density Residential under the LEP. 2. Although use of the site for the purpose of co-living housing is not specified as a permissible use in the Land Use Table 'Shop top housing' is permissible with development consent in the R3 zone. In that regard, s 67 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides: Development for the purposes of co-living housing may be carried out with consent on land in a zone in which development for the purposes of co-living housing, residential flat buildings or shop top housing is permitted under another environmental planning instrument. 1. Clause 2.3(2) of the LEP requires the Court to have regard to the R3 zone objectives when determining the DA. The objectives of 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. • To provide for a concentration of housing with access to services and facilities. • To enhance the essential character and identity of established residential areas. • To ensure that a high level of residential amenity is achieved and maintained. • To ensure that development reflects the desired future character and dwelling densities of the area. 1. The parties submit that the proposal is consistent with the objectives of the R3 zone for the following reasons: * The development provides housing choices for the community in an area close to services and facilities; * The design of the development is compatible with the low and medium-density development in the residential area which is an area undergoing transition; * The amendments to the development have taken into account the residential amenity of the intended occupants and neighbouring dwellings. And as the Amended Statement of Environmental Effects prepared by ABC Planning concludes at p48 building is now compatible with the height, bulk and scale of the existing and desired future character of the locality, and will not result in any unreasonable amenity impacts to existing development and the street in terms of visual impact, views loss of privacy and loss of solar access. 1. The development proposes demolition of the existing structures on the site. Clause 2.7 of the LEP provides that demolition is permissible with consent. The conditions of consent satisfactorily address the proposed demolition works (see particularly: Conditions 1 (demolition plan) and 32, 35, 39, 41 and 43). 2. Clause 4.3(2) of the LEP prescribes a height of buildings development standard of 8.5m. The development has a maximum height of 8.4m and complies with the standard (see plans A000, A002 and A008). 3. Clause 7.1 of the LEP (Earthworks) applies to the site. The development includes minor earthworks in relation to the footings of the building. The development is supported by stormwater plans which propose an above ground OSD basin on the northern side of the site to control discharges from the site in accordance with Council requirements and a Stormwater Quality Management Plan prepared by Mance Arraj Engineers which concludes at pp 8-9 that the proposal will satisfactorily manage stormwater so that there are no adverse environmental impacts. The parties submit and I accept that the objectives of the clause have been met by the expert's consideration of the matters in cl 7.1(3) and the imposition of Conditions 1 (Stormwater plans and supporting documentation), 15, 17, 43, 54, 55, 56 and 77. 4. Clause 7.4 of the LEP applies to the site and requires a consent authority to have regard to the principles of sustainable development as they relate to the development, based on a 'whole of building' approach. The parties submit and I accept that the development has had regard to the principles of sustainable development which is demonstrated in the architectural plans by: * Taking into account the orientation of the site in the design (drawing A001); * The implementation of the landscape scheme, as shown on the site plan A004, which includes more than 40% of the lot area as landscaped area, is consistent with the Council's controls; * The shadow diagrams at drawings A011-A012 which show that reasonable solar access is achieved to the development and neighbouring properties. 1. The parties submit and I am satisfied that the clause has been duly considered by the design and the imposition of Condition 26 which requires solar panels that address and cater for the expected daily energy demands of the development. 2. Clause 7.6 of the LEP requires the consent authority to consider whether or not the proposed development is likely to have an impact on salinity processes and whether or not salinity is likely to have an impact on the proposed development and any appropriate measures that can be taken to avoid or reduce undesirable salinity impacts. The parties submit and I am satisfied that the development has been designed to have minimal excavation and to provide the required 40% of landscaping. Furthermore, that there is minimal excavation and appropriate management of stormwater to avoid undesirable salinity impacts. 3. Clause 7.7 of the LEP requires the consent authority to be satisfied that the development will be connected to a reticulated water supply and have adequate facilities for the removal and disposal of sewage. The parties submit and I accept that the site contains existing urban development and is zoned R3 under the LEP and connection to water and sewage are already available. 4. Clause 7.30 requires the consent authority to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect that maximises green infrastructure, retains water in the landscape, uses design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, that use of building, paving and other materials minimise heat impacts and reduce reliance on mechanical ventilation and cooling systems to conserve energy and to minimise heat sources. The parties submit and I accept that the development proposes a landscaped area that exceeds the Council's DCP control for 40% of the site area and includes canopy trees as shown on the detailed landscape plans (to be approved in Condition 1). The landscape plan shows minimal outdoor paving and instead relies upon turf and gardens. The driveway and pavement have been minimised to not exceed the requirements for safe pedestrian and vehicular access to and from the site. Condition 26 has been imposed to require solar panels to meet the daily energy needs and the applicant accepts the condition. The design of the building includes indents (and reduction in building bulk) to maximise solar access to the building and to minimise overshadowing of neighbours. Condition 51 also requires the planting of 2 street trees. Housing SEPP 1. Chapter 3, Part 3 of the Housing SEPP applies to the development. 2. The development is permissible on the site when regard is had to s 67. 3. Section 68 of the Housing SEPP sets out non-discretionary standards which, if complied with, prevent the consent authority from requiring more onerous standards for the matters. The development complies with the non-discretionary standards and the conditions do not impose more onerous standards. 4. Section 69(1) of the Housing SEPP requires the consent authority to be satisfied of the following matters: Control Compliance Each private room has a floor area, excluding an area, if any, used for the purposes of private kitchen or bathroom facilities, that is not more than 25m2 and not less than 12m2 (for a single occupant) or otherwise 16m2 (s 69(1)(a)). Complies – see drawings A005 and A006 and the Plan of Management (referred to in Condition 1). Minimum lot size of 800m2 (s69(1)(b)). Complies – see drawing A015 The co-living will contain an appropriate workspace for the manager, either within the communal living area or in a separate space (s 69(1)(d)). An appropriate manager's workspace is provided at ground floor in an office accessed from the common living area as shown on drawing A005. Adequate bathroom, laundry and kitchen facilities will be available within the co-living housing for the use of each occupant (s 69(1)(f)). Each room has its own bathroom, laundry and kitchen facilities as shown on plans A005-A006. The kitchen and laundry facilities are further identified on drawings A016-A025. Each private room will be used by no more than 2 occupants (s 69(1)(g)). The Plan of Management confirms the requirement and is approved in Condition 1 and further identified in Condition 2. The co-living housing will include adequate bicycle and motorcycle parking spaces. The development provides 5 motorcycle spaces and 5 car parking spaces, including an accessible space which is complies with Council's parking requirements in C10 of the DCP. 1. Section 69(2) requires the consent authority to consider: (a) the front, side and rear setbacks for the co-living housing are not less than— (i) for development on land in Zone R2 Low Density Residential or Zone R3 Medium Density Residential—the minimum setback requirements for multi dwelling housing under a relevant planning instrument, or (ii) for development on land in Zone R4 High Density Residential—the minimum setback requirements for residential flat buildings under a relevant planning instrument, and (b) if the co-living housing has at least 3 storeys—the building will comply with the minimum building separation distances specified in the Apartment Design Guide, and (c) at least 3 hours of direct solar access will be provided between 9am and 3pm at mid-winter in at least 1 communal living area, and (d), (e) (Repealed) (f) the design of the building will be compatible with— (i) the desirable elements of the character of the local area, or (ii) for precincts undergoing transition—the desired future character of the precinct. 1. The Penrith Development Control Plan 2014 (DCP) sets out the following setback controls for Medium Density Residential at Chapter 2: * Front: either average the setbacks of the immediate neighbour or 5.5 minimum whichever is the greater dimension; * Rear: 4m ground floor, 6m first floor * Side: minimum 2m but along not more than 50% of any boundary 1. The front setback varies between 8.265m to 8.554m, consistent with the neighbouring setbacks. The rear setback at ground level varies between 12.794m and 9.703m. The first-floor setback is slightly less, but complies with the control. The eastern side setback varies between 2.810m and 2m, but predominantly exceeds the control. The western side setback exceeds the 2m control due to the driveway access. A 2m wide landscape strip is provided to the western boundary. The depth of the building has been amended in the Amended DA to comply with the 50% control. 2. The development is 2 storeys and therefore s 69(2)(b) does not apply. 3. The shadow diagrams demonstrate that at least 3 hours of solar access will be provided between 9am and 3pm at midwinter in the communal living area (34.5m2) that is provided on the first floor and has a full northern exposure (Drawing A006 and A011-A012). 4. The locality is undergoing transition consistent with its R3 zoning. The proposal is compatible with the desired future character of the precinct which is informed by the envelope controls and permissible uses in the LEP and objectives of the zone (see Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115). 5. Section 70 of the Housing SEPP requires that subdivision must not be granted for the subdivision of co-living into separate lots. The DA does not propose subdivision into separate lots and Condition 6 further prohibits the subdivision. State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) 1. The RH SEPP applies to the site. Chapter 4 applies to the development. The SEE addresses s 4.6 and undertakes a desktop assessment to confirm that the use of the land has been residential since its original subdivision in about 1943 and that it can be concluded that there is no likelihood of potentially contaminated uses having occurred (p 27). 2. The parties submit and I am satisfied that the requirements of s 4.6 of the RH SEPP are met. State Environmental Planning Policy (Biodiversity & Conservation) 2021 (BC SEPP) 1. The BC SEPP applies to the site. The parties acknowledge that there can be no clearing of land on the site without the consent of Council – in this instance the mechanism would be a consent to the DA to the extent that the DA proposes tree removal. Appropriate conditions are proposed in relation to Tree Removal and replanting (Conditions 1, 8 and 45). Penrith Development Control Plan 2014 (DCP) 1. The parties submit and I accept that the relevant DCP controls have been considered as required by s 4.15(1)(a)(iii) of the EPA Act. 2. The parties agree that the submissions of objectors are a relevant consideration under s 4.15(1)(d) of the EPA Act. The parties submit that the submissions of objectors to the amended application have been taken into account and the DA as amended and the conditions of consent satisfy all relevant matters. 3. As the parties' decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision. 4. The Court notes: 1. That Penrith Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending development application no. DA22/1021 the subject of these proceedings, to rely on the amened plans specified in Annexure A. 2. The amended plans referred to in Condition 1 of Annexure A was filed with the Court on 28 July 2023. 1. The Court orders: 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent that have been thrown away as a result of the amendment of the development application, in the sum of $5,000 within 28 days. 2. The appeal is upheld. 3. Development consent is granted to development application no. DA22/1021 for the demolition of existing structures and construction of a two-storey co-living housing development and associated works at 12-14 Edna Street, Kingswood, subject to the conditions set out in Annexure A. ……………….. S Dixon Senior Commissioner of the Court Annexure A (262449, 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: 02 August 2023