Land and Environment Court New South Wales Medium Neutral Citation: Seaspray Corp Pty Ltd v Penrith City Council [2024] NSWLEC 1760 Hearing dates: Conciliation conference on 19 November 2024 Date of orders: 26 November 2024 Decision date: 26 November 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Appeal is upheld. (2) Development consent is granted to development application DA23/0149, as amended, for a co-living housing development with twenty-five (25) rooms including lot consolidation, demolition of existing structures and construction of a two storey co-living building with shared car parking facilities and communal living and open space areas at 31 and 33 Walter Street, Kingswood NSW 2747, subject to the conditions in the annexure marked "A". Catchwords: APPEAL – co-living housing – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38 Penrith Local Environmental Plan 2010, cll 5.21, 7.1, 7.30 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9 State Environmental Planning Policy (Housing) 2021, Pt 3, Ch 3, ss 68, 69 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98, 2.100 Cases Cited: McMillan v Taylor [2023] NSWCA 183 Texts Cited: Penrith Development Control Plan 2014 Category: Principal judgment Parties: Seaspray Corp Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: A Sarkis (Solicitor) (Applicant) A Guy (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/364750 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a two-storey co-living housing development comprising 29 rooms, at 31-33 Walter Street, Kingswood. The development application was refused by the respondent on 13 June 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 19 November 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed the same date. 4. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments reduce the number of boarding rooms to 25, re-orientates the building so that vehicular access is from Park Avenue, increases the deep soil area for landscaping, introduces recesses in each façade presentation in order to achieve better articulation and compatibility in the streetscape, and makes changes to the materials and finishes. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The site is zoned R3 Medium Density Residential under the Penrith Local Environmental Plan 2010 (PLEP). Whilst co-living housing is prohibited in the R3 zone under the PLEP, Pt 3 Ch 3 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) permits development for the purpose of co-living housing in a zone in which shop top housing is permitted. Shop top housing is permissible in the R3 zone. 2. The proposed development complies with the height development standard in the PLEP. 3. The site is located in a flood planning area, such that cl 5.21 of the PLEP applies. Based on the Flood Assessment Report dated 14 June 2024, I have considered the matters in cl 5.21(3) and I am satisfied of the matters in cl 5.21(2). 4. The proposed development includes earthworks for the construction of footings, such that cl 7.1 of the PLEP applies. Based on the Erosion and Sediment Control Plan dated 30 July 2024, and the soil classification report dated 16 December 2022, I have considered the matters set out in cl 7.1(2) of the PLEP. 5. Clause 7.30 of the PLEP concerns urban heat and applies to the site. Based on the landscape plans and the materials schedule, I am satisfied that planning and design measures are incorporated to reduce the urban heat island effect in accordance with cl 7.30(3) of the PLEP. 6. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. 7. The provisions of Pt 3 Ch 3 of the SEPP Housing apply to the development. At s 69, consent cannot be granted unless certain requirements are met concerning room sizes, lot size, a manager's workspace, adequate bathroom/laundry/kitchen facilities, and bicycle and motorcycle spaces. Based on the Agreed Statement and on the architectural plans, I am satisfied that each of the matters in s 69(1) of the SEPP Housing are met by the proposed development. 8. Further, consistent with s 69(2) of the SEPP Housing, and based on the Agreed Statement and the architectural plans, I have considered whether the setbacks comply with the minimum setback requirements under Part 2.4.5 of the Penrith Development Control Plan 2014 (PDCP), whether the communal living area receives 3 hours direct solar access, and whether the design of the building will be compatible with the desired elements of the character of the local area or the desired future character of the area. 9. I note also that s 68 of the SEPP Housing sets out a number of grounds on which consent cannot be refused if certain criteria are met. The proposed development meets the criteria for floor space ratio, the size and dimensions of the communal living area, the size and dimensions of the communal open spaces, car parking spaces, and landscaping requirements. Accordingly, consent cannot be refused on any of those grounds. 10. The proposed development is adjacent to a rail corridor, and ss 2.98 and 2.100 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) therefore apply. The rail authority, Sydney Trains, was notified pursuant to s 2.98(2) and they did not provide any comments. Section 2.100 of the SEPP TI requires that, before determining a development application for development on land adjacent to a rail corridor, "the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this section and published in the Gazette". The Acoustic Report dated 17 June 2024 considers those guidelines. Based on the Acoustic Report and the agreed conditions of consent, I am satisfied that appropriate measures will be taken to ensure that the LAeq levels in s 2.100(3) are not exceeded. 11. The site is in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies. Based on the concept stormwater plan, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2). 12. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 14 August 2024. 13. The development application was notified between 27 March 2023 and 10 April 2023, and again on its amendment, between 28 October 2024 and 10 November 2024. I have considered the issues raised in the written submissions received in response to each of those notification periods. 1. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes 1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA23/0149 in accordance with the following amended plans (Amended Development Application) which have been filed with the Court on 12 November 2024 and 19 November 2024: No Document Ref No. Prepared by Rev Date 1 Architectural Plans Cover 000 Skyline Architects D 22 Aug 2024 Site Location and Analysis 001 Skyline Architects D 22 Aug 2024 Site Analysis 002 Skyline Architects D 22 Aug 2024 Demolition Plan 003 Skyline Architects D 22 Aug 2024 Ground Floor Plan 101 Skyline Architects D 22 Aug 2024 Level 01 102 Skyline Architects D 22 Aug 2024 Roof Plan 103 Skyline Architects D 22 Aug 2024 Typical Room Layouts 104 Skyline Architects D 22 Aug 2024 North/South Elevations 201 Skyline Architects D 22 Aug 2024 East/West Elevations 202 Skyline Architects D 22 Aug 2024 Streetscape Elevation 203 Skyline Architects D 22 Aug 2024 Sections 301 Skyline Architects D 22 Aug 2024 GFA Diagrams 401 Skyline Architects D 22 Aug 2024 Landscape, POS and Common Lounge Diagrams 402 Skyline Architects D 22 Aug 2024 Shadow Studies 405 Skyline Architects D 22 Aug 2024 Views from the Sun 405 Skyline Architects D 22 Aug 2024 Building Height Plane 407 Skyline Architects D 22 Aug 2024 Finishes Schedule 501 Skyline Architects D 22 Aug 2024 Photomontage 502 Skyline Architects D 22 Aug 2024 2 Landscape Plans Cover Sheet L/01 A Total Concept E 19 Aug 2024 Landscape Plan - Ground Floor L/01 A Total Concept E 19 Aug 2024 3 Stormwater Plans Cover Page 100 Civil Stormwater Engineering Group 04 30 Jul 2024 General Notes 101 Civil Stormwater Engineering Group 04 30 Jul 2024 Stormwater Design – Site Plan 200 Civil Stormwater Engineering Group 04 30 Jul 2024 OSD Details 201 Civil Stormwater Engineering Group 04 30 Jul 2024 Erosion and Sediment Control Plan 300 Civil Stormwater Engineering Group 04 30 Jul 2024 Erosion and Sediment Control Detailed Sections 301 Civil Stormwater Engineering Group 04 30 Jul 2024 Standard Details 400 Civil Stormwater Engineering Group 04 30 Jul 2024 4 Flood Assessment Report Civil Stormwater Engineering Group 1 14 Jun 2024 5 Amended Acoustic Report Acoustic Works R01D 17 Jun 2024 6 Amended Waste Management Plan Dickens Solutions - Jul 2024 7 Traffic Assessment One Traffic - Jun 2024 8 Arboricultural Impact Assessment and Tree Management Plan Horticultural Management Services 2 17 Jun 2024 9 BCA Compliance Report BCA Consulting A 17 Jun 2024 10 Plan of Management GAT & Associates - 06 Jun 2024 11 BASIX Certificate No 1372690M_02 NSW Department of Planning, Housing and Infrastructure 2 14 Aug 2024 1. The Court orders that: 1. The Appeal is upheld. 2. Development consent is granted to development application DA23/0149, as amended, for a co-living housing development with twenty-five (25) rooms including lot consolidation, demolition of existing structures and construction of a two storey co-living building with shared car parking facilities and communal living and open space areas at 31 and 33 Walter Street, Kingswood NSW 2747, subject to the conditions in the annexure marked "A". J Gray 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: 26 November 2024