Land and Environment Court New South Wales Medium Neutral Citation: Nicholas v Blacktown City Council [2019] NSWLEC 1332 Hearing dates: Conciliation conference on 8 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – Demolition of existing structures and construction of a boarding house – affordable housing – conciliation conference – agreement between the parties – orders Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Seniors Living Policy: Urban Design Guidelines for Infill Development Category: Principal judgment Parties: Matthew James Nicholas (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: P Swaab, Macquarie Lawyers (Applicant) L Raffaele, Bartier Perry Lawyers (Respondent) File Number(s): 2018/360972 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the deemed refusal of its development application DA-18-1926. As lodged, the application sought approval for the demolition of existing structures and construction of a boarding house containing 13 bedrooms/suites, accommodating a maximum of 16 lodgers, with a basement car park for 17 vehicles. The development is proposed at 134 Kildare Road, Blacktown (Lot B DP 389550). 2. 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. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 8 July 2019. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision 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). I have formed this state of satisfaction for the following reasons: 1. Pursuant to Blacktown Local Environmental Plan 2015 (LEP 2015) the land is zoned R2 Low Density Residential Zone. Boarding Houses are permissible with consent in the zone. 2. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) as in-fill affordable housing. The division applies to the site as the development sought is permissible under LEP 2015 and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH). 3. The subject site meets the definition of 'accessible area' on the basis of the site being within 400m of a bus stop with regular services as required by cl 4(1)(a) of SEPP ARH. 4. There is no maximum floor space ratio under LEP 2015. 5. The development is compliant with the maximum height standard in LEP 2015. 6. I am satisfied that the application complies with the standards listed at cl 14 of SEPP ARH. 7. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004, to the extent that those provisions are consistent with SEPP ARH. 8. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area. 9. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been lodged (BASIX Certificate 946665M_02 dated 5 July 2019). 10. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 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, the parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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 final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend Development Application No. DA-18-01926 and to rely upon the following amended plans and documents, copies of which are behind Annexure "A": DOCUMENT PREPARED BY DATED DA000, Cover Page, Revision E Design Cubicle Pty Ltd 4 July 2019 DA001, Site Analysis 1 of 3 & Streetscape, Revision E Design Cubicle Pty Ltd 4 July 2019 DA002, Site Analysis 2 of 3, Revision E Design Cubicle Pty Ltd 4 July 2019 DA003, Site Analysis 3 of 3, Revision E Design Cubicle Pty Ltd 4 July 2019 DA200, Site Plan, Revision E Design Cubicle Pty Ltd 4 July 2019 DA201, Basement Plan, Revision E Design Cubicle Pty Ltd 4 July 2019 DA202, Ground Floor Plan, Revision E Design Cubicle Pty Ltd 4 July 2019 DA203, First Floor Plan, Revision E Design Cubicle Pty Ltd 4 July 2019 DA204, Roof Plan & Driveway Section, Revision E Design Cubicle Pty Ltd 4 July 2019 DA300, Elevations & Sections, Revision E Design Cubicle Pty Ltd 4 July 2019 DA601, Shadow Diagrams, Revision E Design Cubicle Pty Ltd 4 July 2019 DA700, Demolition Plan, Revision E Design Cubicle Pty Ltd 4 July 2019 External Materials and Finishes Schedule Design Cubicle Pty Ltd Undated Revised BASIX Certificate No. 946665M_02 Green Star Energy Solutions 5 July 2019 Waste Management Plan, Issue B Design Cubicle Pty Ltd July 2019 1. The appeal is upheld. 2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $5,000.00. 3. Development Application No. DA-18-01926, as amended, for the demolition of existing structures and construction of a New Generation 'Boarding House' containing 12 boarding rooms/suites accommodating a maximum of 16 lodgers, and provision of 7 car parking spaces, 3 motorcycle spaces and 3 bicycle spaces within a basement level on Lot B in Deposited Plan 389550, otherwise known as 134 Kildare Road, Blacktown, be approved subject to the conditions which are behind Annexure "B". ……………………. D M Dickson Commissioner of the Court Annexure A (7.71 MB, pdf) Annexure B (159 KB, pdf) ********** 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: 16 July 2019