Land and Environment Court New South Wales Medium Neutral Citation: Muslim Care v Bayside Council [2024] NSWLEC 1620 Hearing dates: Conciliation conference on 11 September 2024 Date of orders: 04 October 2024 Decision date: 04 October 2024 Jurisdiction: Class 1 Before: Porter C Decision: The Court orders: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent's costs thrown away as agreed or assessed. (2) The appeal is upheld. (3) Development Application No. DA/2020/186, as amended, for demolition of existing structures and construction of a three-storey boarding house comprising 35 rooms, including manager's room and at grade car parking with 7 car spaces, 5 motorcycle spaces and bicycle parking at Lot 6 in DP 13625 and Lot 1 in DP 106663, known as 14-16 Banksia Avenue, Banksia is determined by grant of consent subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION – boarding house - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15. Land and Environment Court Act 1979, s 34 Bayside Local Environmental Plan 2022, cl 1.8A Environmental Planning and Assessment Regulations 2021, cl 3 Environmental Planning and Assessment Regulation 2000, cl 55 Rockdale Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 6.6, 6.7, 6.12, 6.14 State Environmental Planning Policy (Affordable Housing) 2009 Div 3, cll 30, 30A State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Muslim Care (Applicant) Bayside Council (Respondent) Representation: Counsel: M Seymour SC with C Koikas (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Chamberlains Law Firm (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/384555 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) against the refusal of development application 2020/186. The development application sought consent for the demolition of existing structures and construction of a three storey boarding house with carparking and associated works (DA) at 14-16 Banksia Avenue, Banksia. 2. The matter was set down for a hearing between 2 to 4 July 2024 and was adjourned on 2 July 2024 until 11 September 2024. At the hearing on 11 September 2024, upon the request of the parties, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) which was held the same day. I have presided over the conciliation conference. 3. Due to the lodgement date of the DA and pursuant to cl 3(1)(a) of Schedule 6 of Environmental Planning and Assessment Regulation 2021, the previous Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) applies. The respondent, as the relevant consent authority, has agreed under cl 55 of the EPA Reg 2000 to allow the applicant to amend DA-2020/186 in accordance with the documents listed below (amended DA). Plan and Revision No. Plan Name Date Prepared by Approved Plans DA02 (Rev N) Demolition Plan 01-Jul-24 Catherine Munayer Architecture DA03 (Rev O) Site Plan / Roof Plan 30-Aug-24 Catherine Munayer Architecture DA04 (Rev O) Ground Floor Plan 30-Aug-24 Catherine Munayer Architecture DA05 (Rev N) Level 1 Floor Plan 01-Jul-24 Catherine Munayer Architecture DA06 (Rev N) Level 2 Floor Plan 01-Jul-24 Catherine Munayer Architecture DA07 (Rev O) Sub Floor Plan 30-Aug-24 Catherine Munayer Architecture DA08 (Rev O) South and West Elevations 30-Aug-24 Catherine Munayer Architecture DA09 (Rev O) North and East Elevations 30-Aug-24 Catherine Munayer Architecture DA10 (Rev O) North (Banksia) & South (Albert) Elevations 30-Aug-24 Catherine Munayer Architecture DA11 (Rev O) Section A-A 30-Aug-24 Catherine Munayer Architecture S04 (Rev N) North West Height Plane Diagram 1-Jul-24 Catherine Munayer Architecture S05 (Rev N) North West Height Plane Diagram 1-Jul-24 Catherine Munayer Architecture S06 (Rev N) Shadow Diagrams Equinox (March 22nd) @ 9am 1-Jul-24 Catherine Munayer Architecture S07 (Rev N) Shadow Diagrams Equinox (March 22nd) @ 12pm 1-Jul-24 Catherine Munayer Architecture S08 (Rev N) Shadow Diagrams Equinox (March 22nd) @ 3pm 1-Jul-24 Catherine Munayer Architecture S09 (Rev N) Shadow Diagrams Mid Winter (June 21st) @ 9am 1-Jul-24 Catherine Munayer Architecture S10 (Rev N) Shadow Diagrams Mid Winter (June 21st) @ 12pm 1-Jul-24 Catherine Munayer Architecture S11 (Rev N) Shadow Diagrams Mid Winter (June 21st) @ 3pm 1-Jul-24 Catherine Munayer Architecture LA01 (Rev B) Proposed Planting Plan 20-Jun-24 TaylorBrammer LA02 (Rev B) Proposed Planting Schedule 20-Jun-24 TaylorBrammer PS01-A000 (Rev B) Cover Sheet 29-Jul-24 Martens & Associates PS01-A050 (Rev B) Development Overview Plan 29-Jul-24 Martens & Associates PS01-C100 (Rev B) Grading Plan 29-Jul-24 Martens & Associates PS01-C500 (Rev B) Grading Cut-Fill Plan 29-Jul-24 Martens & Associates PS01-C600 (Rev B) Grading Site Sections (Sheet 1) 29-Jul-24 Martens & Associates PS01-C601 (Rev A) Grading Site Sections (Sheet 2) 29-Jul-24 Martens & Associates PS01-D100 (Rev B) Roadworks and Drainage Plan 29-Jul-24 Martens & Associates PS01-E200 (Rev B) OSD Details 29-Jul-24 Martens & Associates PS01-E300 (Rev B) Drainage Longitudinal Section 29-Jul-24 Martens & Associates PS01-E500 (Rev B) Hydrology & Hydraulic Calculations 29-Jul-24 Martens & Associates PS01-E600 (Rev B) OSD Catchment Plan, Model and Results 29-Jul-24 Martens & Associates PS01-E700 (Rev B) Water Quality Catchment Plan, Model and Results 29-Jul-24 Martens & Associates Approved Documents Arboricultural Impact Appraisal and Method Statement 12-Jun-24 Andrew Scales, Naturally Trees Arboricultural Consulting Acoustic Treatment of Ventilation Systems 25-Jun-24 Day Design No. 4996 (Rev B) Operational Waste Management Plan 26-Jun-24 Elephants Foot Consulting P2309729JR03V02 Geotechnical, Acid Sulfate Soil and Groundwater Assessment 01-Jul-24 Martens & Associates P2309729JR02V01 Stormwater Management Report 30-Jul-24 Martens & Associates P2309729JR01V02 Flood Assessment 01-Aug-24 Martens & Associates Operational Plan of Management Sep-24 BMA Urban Clause 4.6 Variation Statement 11-Sep-24 BMA Urban 1. 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 DA and granting development consent to the amended application subject to conditions of consent. 2. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement identifying all the relevant preconditions and setting out how the proposal has satisfied the jurisdictional requirements. 3. 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. 4. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended 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 owner's consent accompanied the development application. The respondent notified the development application between 24 June 2020 to 8 July 2020 and an amended application was notified between 4 March 2024 to 18 March 2024. The first notification period resulted in 121 submissions and the second resulted in 28 submissions. 3. In reaching agreement, the parties have advised the Court in paragraphs 8-9 of the jurisdictional statement that the submissions have been considered and the relevant matters addressed. Rockdale Local Environmental Plan 2011 1. Pursuant to cl 1.8A savings provision of the Bayside Local Environmental Plan 2021, the Rockdale Local Environmental Plan 2011 (RLEP) applies to the amended application. I accept the parties' agreement that the identified preconditions to grant consent are satisfied as detailed below. 1. The site is zoned R3 Medium Density Residential. The proposed development for a boarding is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone. 2. Clause 4.3 height of buildings applies to the site, with a maximum height of 12m. The amended application breaches the height between 100mm-1.88m. The amended DA seeks to contravene cl 4.3 pursuant to cl 4.6 exceptions to development standards. The amended application is accompanied by an updated cl 4.6 written request prepared by BMA Urban dated September 2024 (amended written request) to contravene the height development standard. The now repealed provisions of cl 4.6 applies, which have all been addressed by the amended written request. The parties agree and I accept that the written request satisfies the provisions of cl 4.6. 3. Clause 4.4 floor space ratio (FSR) sets a maximum FSR of 1.25:1. The amended architectural plans prepared by Resolut dated 30 August 2024 (architectural plans), drawing DA01, states that the amended DA is below the maximum FSR, at 0.94:1. 4. Clause 6.6 flood planning and cl 6.7 stormwater apply to the site. On the basis of the documentation accompanying the amended DA, including the Flood Assessment Report, Stormwater Management Report, Geotechnical, Acid Sulfate Soil and Groundwater Assessment, stormwater plans all prepared by Martens & Associates, the flooding joint expert report filed 2 September 2024 and paragraphs 24-25 of the jurisdictional statement, I accept the parties' agreement that the provisions have been satisfied. 5. Clause 6.12 essential services applies to the amended DA. The site is currently serviced by the requisite essential services and will continue to be under the amended DA. 6. Clause 6.14 design excellence applies as the site is located within the Banksia Precinct. I accept the agreement of the parties on the basis of the urban design and planning joint expert report filed 25 June 2024 that the amended DA satisfied the provisions of cl 6.14(3) and (4) as detailed at paragraph 7. In relation to cl 6.14(5), the application was referred to the Bayside Design Review Panel on several occasions and the feedback considered, as detailed in the Statement of Facts and Contentions. State Environmental Planning Policy (Affordable Rental Housing) 2009 1. Pursuant to Sch 7A, State Environmental Planning Policy (Housing) 2021 does not apply to the amended DA. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) applies instead. 2. As set out in the jurisdictional statement, the parties agree, and I accept that the identified preconditions to the grant of consent in Div 3 of SEPP ARH are met as follows: * Clause 30(1)(a) – two communal rooms are provided on the ground floor and level 1. * Clause 30(1)(b) – No room exceeds 25sqm (excluding private kitchen and bathroom areas) as shown on the architectural plans. * Clause 30(1)(c) – The Operational Plan of Management prepared by BMA Urban dated September 2024 details that not more than two people will occupy a room. * Clause 30(1)(d) – Each room on the architectural plans demonstrates bathroom and kitchen facilities. * Clause 30(1)(e) – A boarding room for a manager is shown on the architectural plans (room B07). * Clause 30(1)(h) – The minimum parking requirements are shown on the architectural plans. * Clause 30A character of the local area - The amended DA is compatible with desirable elements of the local area, including built form placement across the site and modest scale that responds to the surrounding R2, R3 and R4 zoned land as detailed at paragraph 7 of the urban design and planning joint expert report. State Environmental Planning Policy (Resilience and Hazards) 2021 1. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 apply to the site. As detailed in the Statement of Environmental Effects prepared by BMA Urban dated June 2020, the site has a history of residential use and is unlikely to be contaminated. On this basis, the parties agree and I accept that s 4.6 has been satisfied. Conclusion 1. 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. 2. I have considered the jurisdictional prerequisites identified by the parties 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. 3. 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. Orders: 1. The Court orders: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant shall pay the Respondent's costs thrown away as agreed or assessed. 2. The appeal is upheld. 3. Development Application No. DA/2020/186, as amended, for demolition of existing structures and construction of a three-storey boarding house comprising 35 rooms, including manager's room and at grade car parking with 7 car spaces, 5 motorcycle spaces and bicycle parking at Lot 6 in DP 13625 and Lot 1 in DP 106663, known as 14-16 Banksia Avenue, Banksia is determined by grant of consent subject to the conditions at Annexure A. S Porter Commissioner of the Court 384555.22 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: 04 October 2024