Land and Environment Court New South Wales Medium Neutral Citation: Chen v Cumberland Council [2019] NSWLEC 1490 Hearing dates: Conciliation conference on 4 September 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Huifang Chen (Applicant) Cumberland Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/6002 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal concerning a development application for the demolition of existing structures, tree removal and construction of a four storey boarding house containing 31 rooms and one level of basement car parking and associated landscaping at 98 St Hilliers Road, Auburn. 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 [7] 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 4 September 2019. I presided over the conciliation conference. 3. Following 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application is for a boarding house that is reduced in size (from that originally proposed) so as to meet the height development standard and reduce the demand for car parking spaces. 4. 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The proposed development is for the purpose of a "boarding house" as defined in the Dictionary to Auburn Local Environmental Plan 2010 ("ALEP 2010"), which is a permissible use in accordance with the Land Use Table relating to Zone R4 High Density Residential in ALEP 2010, in which the land is located. * The proposed development does not contravene any development standard in the ALEP 2010 or any other applicable environmental planning instrument. * The development application (as amended) was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated. * Consideration has been given as to whether the design of the proposed development is compatible with the character of the local area as required by cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, on the basis of the content of the Statement of Environmental Effects lodged with the Class 1 Application as well as the amendments made to the design of the boarding house. 1. Having reached the state of satisfaction that the decision is one that the Court could make 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 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 orders that: 1. The Applicant is granted leave to rely on the following amended plans and documentation: Plan Reference / Drawing No. Prepared By Issue Dated Unit Schedule / DA A-0020 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Site Plan / DA A-1010 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Demolition Plan / DA A-1101 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Basement Plan / DA A-1201 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 (as amended in red) Ground Floor Plan / DA A-1202 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Level 01-03 Plan / DA A-1203 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Roof Plan / DA A-1204 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Elevations 01 / DA A-1301 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Elevations 02 / DA A-1302 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Section A / DA A-1401 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Section B / DA A-1402 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Material Schedule 01 / DA A-2201 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Material Schedule 02 / DA A-2202 Ghazi Al Ali Architect Pty Ltd D 4/09/2019 Hardscape Plan / LPS34 19-59/1 Conzept Landscape Architects F 21/08/2019 Landscape Plan / LPS34 19-59/2 Conzept Landscape Architects F 21/08/2019 Details-1 / LPS34 19-59/3 Conzept Landscape Architects C 16/08/2019 Details-2 / LPS34 19-59/4 Conzept Landscape Architects C 16/08/2019 BASIX Certificate / 972447M_02 AENEC – T/A Wide Spectrum Pty Ltd - 11/09/2019 Plan of Management / B3346 Nexus Environmental Planning Pty Ltd 24/09/2019 Aboricultural Impact Assessment (with Root Mapping Investigation) / AIA-RM CHE 08/19 N.S.W Tree Services Pty Ltd - 13/08/2019 Noise Assessment / 181012-01L-DD Acoustic Consulting Engineers 01 5/11/2018 (as amended by Condition no. 6) 1. 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 $3,750.00 within 21 days of the date of these orders. 2. The appeal is upheld. 3. Development Application No. 340/2018 for the demolition of existing structures, tree removal and construction of a four (4) storey boarding house containing 31 rooms (comprised of 28 double occupancy rooms and 2 single occupancy rooms) including manager's residence, with one (1) level of basement car parking containing fifteen (15) car parking spaces (including two (2) accessible spaces), nine (9) motorcycle spaces and seven (7) bicycle spaces, a communal room and rear communal open space, and associated landscaping on the land at 98 St Hilliers Road, Auburn is approved subject to the conditions of consent at Annexure "A". ………………………… J Gray Commissioner of the Court Annexure A (283 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: 18 October 2019