Land and Environment Court New South Wales Medium Neutral Citation: Metland 2 Pty Ltd v Cumberland Council [2024] NSWLEC 1395 Hearing dates: Conciliation conferences on 14 May 2024 and 11 June Date of orders: 10 July 2024 Decision date: 10 July 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) The Applicant is directed to file the amended development application, the subject of Order (4), within 7 days of the date of this Order. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs thrown away as a result of the amended application in the agreed amount of $4,000.00 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Development consent is granted for the demolition of existing structures, tree removal, and subsequent construction of an eight-storey, 92 room co-living housing development, including manager's room, with ground floor commercial premises, above basement parking for 23 vehicles, with associated landscaping at 25 Station Road, Auburn subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – co-living housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Cumberland Local Environmental Plan 2021, cll 2.3, 2.7, 4.3, 4.4, 5.21, 6.2, 6.4, 6.7, 6.12, 6.13 Environmental Planning and Assessment Regulation 2021, s 38 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.8, 6.9 State Environmental Planning Policy (Housing) 2021, Pt 3, ss 67, 68, 69 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Metland 2 Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: J Koprivnjak (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Dentons (Applicant) Cumberland Council (Respondent) File Number(s): 2023/327749 Publication restriction: Nil 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 deemed refusal of development application 2023/0392 for the demolition of existing structures and construction of commercial premises on the ground floor and 106 co-living rooms including a manager's room, with ground floor commercial premises, above basement parking, with associated landscaping at 25 Station Road Auburn and legally described as Lot 27, Section 13 in DP 995 (DA). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 May 2024 and 11 June 2024. I have presided over the conciliation conference. 3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA-2023/0392 in accordance with the documents listed at [27] (amended DA). 4. As part of the conciliation conference process, 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 for the amended application and granting development consent to the amended application subject to conditions of consent. 5. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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. 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. Jurisdictional Prerequisites 1. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below. 2. I am satisfied that owners consent accompanied the DA. The Respondent notified the DA between 10 to 24 August 2023. Seven submissions were received. The Court and the parties heard oral submissions at the commencement of the s 34 conciliation conference. 3. In reaching agreement, the parties have considered the concerns raised. State Environmental Planning Policy (Housing) 2021 (Housing SEPP) 1. The amended DA is made pursuant to Part 3 Co-living housing of the Housing SEPP. Section 67 permits development for the purpose of co-living housing where shop top housing is permitted under another environmental planning instrument. 2. The parties agree and I accept that the relevant provisions of Part 3 are met as demonstrated by the amended Architectural Plans prepared by Tier Architects dated 16 May 2024 (architectural plans) and Amended Statement of Environmental Effects prepared by Avenue Town Planning dated 4 June 2024, set out below: * Section 68 (2)(c)(d) – More than the required 200m2 and 20% site area is proposed, with a dimension of more than 3m on levels 1-3 (architectural plans) * Section 68 (2)(e)(i) – the development is located in an accessible area and provides the minimum 19 car spaces (SEE and architectural plans) * Section 69 (1)(a) – All single and double rooms do not exceed the minimums (SEE) * Section 69 (1)(b)(ii) – The site exceeds 800m2 at 930.9m2 (ATS Land & Engineering Surveyors Pty Ltd) * Section 69 (1)(d) – An appropriate workspace has been provided for the manager on level 1 (architectural plans) * Section 69 (1)(e) – The ground floor is for commercial use (architectural plans) * Section 69 (1)(f) – each room is proposed to contain all required facilities (SEE) * Section 69 (1)(g) – maximum number of occupants is imposed by the Plan of Management * Section 69 (1)(h) – bicycle and motorcycle parking is provided on the ground floor * Section 69 (2)(b) and (c) – the parties have considered that the variation to the minimum building separation distance in the Apartment Design Guide is adequate (jurisdictional statement) and that solar access is received to the level 3 communal open space area (SEE). * Section 69 (2)(f) – the design of the building is compatible with the desired future character of the local area (SEE). Cumberland Local Environmental Plan 2021 1. The subject site is zoned E1 Local Centre, where part of the proposed development for commercial premises is permissible with consent. The proposed co-living use is prohibited in the zone but permissible pursuant to s 67 of the Housing SEPP, as shop top housing is permissible in the E1 Local Centre zone. Pursuant to cl 2.3 of Cumberland Local Environmental Plan 2021 (CLEP), I have had regard to the objectives of the zone. 2. Clause 2.7 demolition applies, which is sought in the amended DA. 3. The amended DA is subject to cl 4.3 with an allowable maximum height of 25m. The amended DA has a height of 25m (Title sheet and Section AA of the architectural plans). 4. The amended DA is subject to cl 4.4 and does not exceed the maximum Floor Space Ratio of 3.6:1 permitted by cl 4.4, at 3.48:1 (Title sheet, architectural plans). 5. Clauses 5.21 flood planning and 6.7 stormwater management apply. I accept the parties agreement that the clauses have been satisfied on the basis of the Statement of Facts and Contentions, flood level letter issued by Cumberland Council dated 3 November 2022, architectural plans and amended Stormwater Plans prepared by LMW Design Group dated 10 May 2024 (amended SW plans). 6. Clause 6.2 earthworks applies to the amended DA. I accept the parties agreement that the provisions have been considered on the basis of the amended SW plans, Stormwater Erosion Control Plans prepared by LMW Design Group dated 2 February 2023, Geotechnical Investigation Report prepared by Morrow Geotechnics Pty Ltd dated 21 December 2022 and conditions of consent at Annexure A. 7. Clause 6.4 applies to the site. The parties agree and I accept with consideration of the SEE that adequate arrangements have been made for the required essential services. 8. Clause 6.12 urban heat applies to the amended DA and I accept that the parties have considered the provisions as set out in the jurisdictional statement. 9. I accept the parties' agreement that the provisions of cl 6.13 ground floor development has been met as the ground floor does not contain residential accommodation and other areas on the ground floor are consistent with the exclusions at cl 6.13(4)(a) and (5)(a). State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) 1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. In order for the site to be suitable, the proposed development is accompanied by a Remedial Action Plan prepared by Geo-Environmental Engineering dated 26 June 2023 (RAP). The RAP outlines how the contamination will be dealt with in order to make the site suitable. The RAP has been included in the conditions of consent at Annexure A. Accordingly, the parties agree, and I am satisfied, that the provisions of s 4.6 of SEPP RH have been adequately addressed. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) 1. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located in the Sydney Water Catchment. With consideration of the amended SW plans, Statement of Facts and Contentions, SEE and jurisdictional statement that outlines the neutral effect on the quality of water and water flow as well as the management of flood waters and potential pollutants, I accept the agreed submissions of the parties and am satisfied that ss 6.6, 6.7, 6.8 and 6.9 of SEPP BC have been met. Conclusion 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' decision. 2. 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. 3. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Notations 1. The Court notes that the Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA2023/0392 to rely upon the following amended plans and documents: Tab Document Date Plans Architectural Plans prepared by Tier Architects (Revision F): • 100 – Title Sheet • 102 – Site Plan • 103 – Site Analysis • 303 – Basement 1 and 2 Floor • 305 – Ground and Level 1 Floors • 307 – Levels 2 and 3 Floor • 309 – Levels 4, 5, 6, 6, 7, 8 Floors and Roof • 311 – Elevations • 312 – South-West Elevation 1. • 313 – North-East Elevation 16 May 2024 • 314 – Internal Elevations • 400 – Section AA • 500 – Winter Solstice Shadows • 501 – Winter Solstice Shadows • 600 – Area Calculations • 601 – Area Calculations 2 • 800 – Typical Double Room Layouts • 801 – Typical Single Room Layout • 900 – Materials and Finishes • 901 – Demolition Plan Landscape Plans prepared by Plandrew (Issue C): 2. • C01 – Cover Page 10 April 2024 • C02 – Ground and Level 1 Landscape Plans • C03 – Level 2 and 3 Landscape Plans Stormwater Plans prepared by LMW Design Group: • D0 Rev E – Index of Drainage Drawing Set • D1 Rev D – Basement 02 Stormwater Drainage Concept Plan • D2 Rev D – Basement 01 Stormwater Drainage Concept Plan • D3 Rev E – Site and Ground Floor Stormwater Drainage Concept Plan 3. • D4 Rev E – First Floor Stormwater Drainage Concept Plan 10 May 2024 • D5 Rev E – OSD Section Details • D6 Rev C – Drainage Design Summary and OSD Location • D7 Rev C – Level 02 and Level 03 Stormwater Drainage Concept Plan • D8 Rev C – Level 04 to Level 08 stormwater Drainage Concept Plan • D9 Rec C – Roof Stormwater Drainage Concept Plan Swept Paths Analysis prepared by PDC Consultants: 4. • 001 – Ground Level, SRV Design Vehicle Swept Path Analysis, Entry and Exist Movements 20 May 2024 • 002 – Ground Level, B99 Design Vehicle Swept Path Analysis, Entry and Exit Movements Documents / Reports 5. Amended Statement of Environmental Effects prepared by Avenue Town Planning 4 June 2024 6. Operational Waste Management Plan prepared by Elephants Foot Consulting 20 May 2024 7. Acoustic Report prepared by West & Associates Pty Ltd 31 May 2024 8. Co-Living Housing Plan of Management prepared by Brellatrac May 2024 • Template Occupancy Agreement with house rules Confirmation of Site Serviceability prepared by Wastefree and: 9. • Product and Service Summary prepared by WasteFree 3 May 2024 • Waste Wise Mini Truck Dimensions prepared by WasteWise Orders 1. The Court orders: 1. The Applicant is directed to file the amended development application the subject of Order (4) within 7 days of the date of this Order. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs thrown away as a result of the amended application in the agreed amount of $4,000.00 within 28 days of the date of these orders. 3. The appeal is upheld. 4. Development consent is granted for the demolition of existing structures, tree removal, and subsequent construction of an eight-storey, 92 room co-living housing development, including manager's room, with ground floor commercial premises, above basement parking for 23 vehicles, with associated landscaping at 25 Station Road, Auburn subject to the conditions of consent at Annexure A. S Porter Commissioner of the Court 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: 10 July 2024