Land and Environment Court New South Wales Medium Neutral Citation: Elias v Penrith City Council [2023] NSWLEC 1679 Hearing dates: Conciliation conference on 12 September and 11 October 2023 Date of orders: 10 November 2023 Decision date: 10 November 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court Orders that: (1) Pursuant to s 39(2) of the Land and Environment Court Act 1979, the Court, exercising the function of Penrith City Council as consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, approves the application to amend development application no. DA23/0058 to rely on the amended plans and documents listed in Annexure A to these orders. (2) The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $3,478.50 to be paid within 14 days of the date of these Orders. (3) The Appeal is upheld. (4) Development Application DA23/0058 seeking consent for a co-living housing development with 29 rooms across 2 separate buildings including lot consolidation, demolition of existing structures and construction of a two-storey co-living building with shared basement car parking facilities and communal living and open space areas at 1-3 Edna Street, Kingswood NSW 2747, is determined by the grant of Development Consent, subject to the conditions at Annexure B. Catchwords: DEVELOPMENT APPLICATION – Co-living Housing – amended plans – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34 Penrith Local Environmental Plan 2010, cll 2.7, 4.3, 4.4, 5.10, 7.2 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 ch 3, part 3. State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Elie Elias (Applicant) Penrith City Council (Respondent) Representation: Counsel: J Reid (Applicant) J Wauchope (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Dentons Australia (Respondent) File Number(s): 2023/105035 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Elie Elias (the Applicant) against the actual refusal of Development Application No. DA23/0058 lodged with Penrith City Council (the Respondent) in February 2023. 2. The Development Application (DA) seeks development consent for a co-living housing development with 29 rooms across 2 separate buildings including lot consolidation, demolition of existing structures and construction of a two-storey co-living building with shared basement car parking facilities and communal living and open space areas. The subject land is Lot 87 and Lot 88 in Deposited Plan 241989, also known as 1-3 Edna Street, Kingswood NSW 2747 (The Site). 3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference was held on 12 September and 11 October 2023. 4. At the conciliation conference, the parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the DA subject to agreed outcomes and agreed conditions. 5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court to the agreement of the parties. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Penrith Local Environmental Plan 2010 (PLEP 2010), the subject site is in Zone R3 Medium Density Residential. The Proposed Development is prohibited by the PLEP 2010. However, pursuant to Chapter 3 Part 3 of the State Environmental Planning Policy (Housing) 2021, development for the purpose of co-living housing consent on land in a zone which development for the purpose of residential flat buildings or shop top housing is permitted. The R3 Zone in the PLEP 2010 permits "shop top housing". Demolition is permissible with consent in accordance with cl 2.7 of the PLEP 2010. 2. Pursuant to cl 4.3 of PLEP 2010, a height limit of 10 metres applies to the Site. The Proposed Development will result in the overall height of 8.2 metres and therefore complies with cl 4.3. 3. The Site is not subject to Floor Space Ratio requirements under cl 4.4 of PLEP 2010. The Proposed Development therefore complies with cl 4.4. 4. Clause 5.10 of PLEP 2010 requires the Consent Authority to consider the effect of the Proposed Development on the heritage significance of a heritage item or heritage conservation area concerned. The Site is not listed as a heritage item, within a conservation area, nor are there any heritage items within close proximity to the Site. 5. The Site is identified as being flood prone under cl 7.2 of PLEP 2010. This was considered in the prior development approval for 1 Edna Street, Kingswood NSW and was discussed in the statement of environmental effects submitted with the development application. 6. The DA was notified between 20 February 2023 and 6 March 2023. There were six submissions made by objectors which have been considered by the parties. 7. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 8. The parties have considered, and are satisfied, that the applicable requirements under State Environmental Planning Policy (Biodiversity and Conservation) 2021 have been met. The Proposed Development is not seeking consent for any tree removal given the Site contains no significant vegetation. The Proposed Development is to incorporate high quality landscape embellishment works along with appropriate replacement plantings to help reduce the physical bulk and scale of the development while also enhancing privacy levels and amenity. 9. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties agree that the Site is suitable for residential development consistent with the Resilience and Hazards SEPP. This is because the applicant undertook a Preliminary Site Investigation of the Site (PSI), prepared by Geotechnical Consultants Australia (CGS) that confirms: 1. a site investigation was undertaken of the Site by a qualified environmental consultant; 2. during the site inspection, CGS did not observe any environmental issues, risks or exposures considered to be of significant concern; and 3. the potential for significant contamination of the soil and groundwater within the Site is low, and that the Site is suitable for the proposed development and land use, providing that the recommendation contained in the PSI are implemented during the construction certificate stage. Various conditions of consent have been agreed to address any contamination issues, and risks associated the potential presence of any asbestos on the Site. 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' agreement. 2. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. Orders 1. The Court Orders that: 1. Pursuant to s 39(2) of the Land and Environment Court Act 1979, the Court, exercising the function of Penrith City Council as consent authority under s 38(1) of the Environmental Planning and Assessment Regulation 2021, approves the application to amend development application no. DA23/0058 to rely on the amended plans and documents listed in Annexure A to these orders. 2. The applicant is to pay the respondent's costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $3,478.50 to be paid within 14 days of the date of these Orders. 3. The appeal is upheld. 4. Development Application DA23/0058 seeking consent for a co-living housing development with 29 rooms across 2 separate buildings including lot consolidation, demolition of existing structures and construction of a two storey co-living building with shared basement car parking facilities and communal living and open space areas at 1-3 Edna Street, Kingswood NSW 2747, is determined by the grant of Development Consent, subject to the conditions at Annexure B. Stuart Harding 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: 10 November 2023