Nicholas v Cumberland Council [2018] NSWLEC 1653

Land and Environment Court New South Wales

Medium Neutral Citation: Nicholas v Cumberland Council [2018] NSWLEC 1653 Hearing dates: Conciliation conference on 30 November 2018 Date of orders: 17 December 2018 Decision date: 17 December 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [15] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; boarding house; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Texts Cited: Holroyd Development Control Plan 2013 Category: Principal judgment Parties: Souad Nicholas (Applicant) Cumberland Council (Respondent) Representation: Counsel: P Clay SC (Applicant)

Solicitors: Macquarie Lawyers (Applicant) P Hudson, Marsdens Law Group (Respondent) File Number(s): 2018/162397 Publication restriction: No

Judgment 1. COMMISSIONER: On 3 April 2018, the applicant lodged a Development Application No 2018/111/1 (DA) seeking consent for the demolition of existing structures and the construction of a two storey, 11 room boarding house accommodating a total of 19 lodges, offering 3 car parking spaces and 3 motorbike spaces at 6 Monterey Street, South Wentworthville (the site). 2. The application was made pursuant provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 3. Before any determination was made, the applicant exercised his right of appeal to the Court on a deemed to have been refused basis pursuant to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act). 4. The Council's Statement of Facts and Contentions (SOFC) dated 11 July 2018 sets out the background and statutory controls and the contentions. It records that the site is located within the R2 Low Density Residential zone under the Holroyd Local Environmental Plan 2013 (LEP). Finlayson Creek which is zoned RE1 Public Recreation also adjoins the site to the northwest. 5. The site is surrounded by a mix of single storey dwellings and dual occupancy developments. 6. The DA was notified and 6 submissions objecting to the application were received by the Council. The issues raised in the submission included: * traffic impact; * incompatibility with the character of the Street; * bulk and scale of the development; * exacerbation of flood impacts; * adverse social impact and * security/crime concerns 1. Following assessment, the Council decided that the application should be refused because the design was not compatible with the character of the local area in terms of building appearance and front setback treatment. In that regard, cl 30A of the SEPP ARH mandates that the consent authority (now the Court) must not grant consent to the development unless it has taken into consideration whether the design is compatible with the character of the local area. 2. The clause provides: 30A Character of local area A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. The parties agree that the "local area" for this application is the visual catchment of the site when viewed from within the site and directly adjacent to the site from the Street. They also agree that the local area is characterised by a mixture of low density one and two-storey detached houses of fibrous cement, weatherboard and brick construction with pitch roots and significant landscaped area in front in the front and rear yards. Car parking is predominantly provided in the form of a detached garage behind front building alignments and accessed via private driveway alongside the boundary. Overall, the character of the local area is in accordance with the low density zoning. 2. In order to be compatible, the Council contends that the development should contain or at least respond to the key aesthetic elements of the surrounding area. The original proposal included 60% of the front yard area as hard stand spaces to accommodate off-street parking and the garbage bin area. This was considered to be incompatible with the existing character of the local area which is relevant by dint of cl 30A. The development was also found to be non-compliant with parking requirements and did not provide a safe pedestrian access: cl 29(2) of the SEPP ARH and OB of Part B Section 1.11 Car parking and Roads of Holroyd Development Control Plan 2013. The Council's contentions are particularised in Part B of the SOFC. I have read them and do not need not to repeat them at this time because they have been addressed to the Council's satisfaction by the amended plans. 3. The parties now invite me to approve the development on the terms as set out in the agreement they reached under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) at the s 34 conciliation conference which I facilitated on 30 November 2018, namely: 1. The Applicant is granted leave to rely on the following plans and documents: Architectural plans prepared by Design Cubicle, Job Number 170882; Drawing No. Title Issue Date DA100 Site Plan B 16 August 2018 DA201 Ground Floor Plan B 16 August 2018 DA202 First Floor Plan B 16 August 2018 DA203 Roof Plan B 16 August 2018 DA300 Elevations 1 of 2 B 16 August 2018 DA301 Elevation 2 of 2 B 16 August 2018 DA400 Sections B 16 August 2018 DA604 Demolition Plan B 16 August 2018