Land and Environment Court New South Wales Medium Neutral Citation: Phillip House Nursing Home Pty Ltd v Waverley Council [2023] NSWLEC 1549 Hearing dates: Conciliation Conference 8 September 2023 Date of orders: 21 September 2023 Decision date: 21 September 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The Applicant is granted leave to rely on the documents listed at paragraph 17(1) of this judgment. (2) The applicant shall pay the Respondent's costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $3,000.00 within 14 days of the date of this order. (3) The appeal is upheld. (4) Development Consent is granted to Development Application DA-94/2021/A for demolition of existing structures; and construction of a 3-storey boarding house for persons aged over 55, containing 40 rooms plus a managers unit and basement carparking at 319-321 Bronte Road, Waverley, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL – appeal against conditions of consent – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, Pt 2, Div 3, cll, 29, 30 Category: Principal judgment Parties: Phillip House Nursing Home Pty Ltd ACN 001 389 626 (Applicant) Waverley Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor)(Applicant) S Patterson (Solicitor)(Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2022/367833 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 conditions of consent imposed for development application DA94/2021 for demolition of existing 2 x two-storey buildings used as aged care facilities and construction of a three-storey boarding house comprising of 40 boarding rooms, 1 Manager's unit and 1 level of basement car parking for 23 vehicles, 10 motorbikes and 9 bicycles, as an aged care facility for persons aged 55 years and over at 319-321 Bronte Road, Waverley legally described as Lot 10 in DP801057 (the Site). 2. The DA was approved by the Waverley Local Planning Panel (the Panel) on 16 February 2022 subject to conditions (the Conditions). The Applicant commenced these Class 1 proceedings against the Conditions on 6 December 2022 seeking to delete condition 2 and to amend condition 5(b). 3. 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 12 May 2023 and was subsequently terminated. The parties continued to engage in discussions and the Applicant amended the application by not pressing the deletion of condition 2 and seeking only to amend the terms of condition 5(b) to allow for 77 residents at the boarding house. The Applicant's amended plans and documents have satisfied the concerns of the Respondent Council raised in the Statement of Facts and Contentions filed 6 February 2023. 4. A further conciliation conference under s 34(1) of the LEC Act was arranged by the Court and held on 8 September 2023. I presided over that conciliation conference. 5. 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. 6. 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. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 8. 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 the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The parties explained how the jurisdictional prerequisites have been satisfied in a joint jurisdictional statement to which I have had regard as to how each jurisdictional prerequisite has been satisfied. 9. The provisions of Pt 2 Div 3 of the SEPP ARH are relevant to the Proposed Development. 10. The Consent condition 5(b) imposed by the Panel permits only 41 residents including the manager equating to 1 person per room. The Applicant seeks to amend the condition to permit a maximum of 77 occupants of the Proposed Boarding House, to be made up of 36 double occupancy rooms, 4 single occupancy rooms and a single occupancy manager's room. 11. The development standard in cl 30(c) of the SEPP ARH does not allow more than 2 persons to occupy any approved room in a boarding house and there are provisions at cl 29(2)(f) of the SEPP ARH which specify the size of room to provide capacity for either 1 occupant or 2 occupants in a boarding house. 12. Each of the rooms approved in the Proposed Development meet the minimum requirement of 16m2 excluding any area used for the purposes of private kitchen or bathroom facilities. The parties agree that on this basis condition 5(b) can be amended to allow for 2 persons in each boarding room. 13. The parties agree that the retention of condition 2 and the amendment to condition 5(b) is consistent with the Proposed Development as sought originally and that the court has the power to uphold the appeal subject to the conditions in Annexure A. 14. The Court is satisfied that it has the power to amend condition 5(b) as sought and in accordance with the conditions in Annexure A. 15. 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. I adopt the reasons given by the parties. 16. 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. Pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Respondent consent authority has approved the Applicant amending Development Application DA-94/2021/A in accordance with the following plans and documents: Drawing Title / Plan no/ Document title Version Prepared by Dated Basement Floor Plan E Boffa Robertson Group 23 May 2023 Ground Floor Plan Drawing DA05 E Boffa Robertson Group 14 August 2023 Plan of Management Mecone 16 June 2023 (received by council on 20 June 2023) Operational Waste Management Plan G Elephants Foot 20 June 2023 Fire Engineering Statement Innova Services Australia 26 May 2023 (Received by Council on 14 June 2023) 1. The Applicant filed the Amended Application with the Court on 8 September 2023. Orders: 1. The Court orders: 1. The Applicant is granted leave to rely on the documents listed at paragraph 17(1) of this judgment. 2. The applicant shall pay the Respondent's costs thrown away by reason of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $3,000.00 within 14 days of the date of this order. 3. The appeal is upheld. 4. Development Consent is granted to Development Application DA-94/2021/A for demolition of existing structures; and construction of a 3-storey boarding house for persons aged over 55, containing 40 rooms plus a managers unit and basement carparking at 319-321 Bronte Road, Waverley, subject to the conditions of consent at Annexure A. E Espinosa Commissioner of the Court 367833.22 Annexure A ********** 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: 21 September 2023