Land and Environment Court New South Wales Medium Neutral Citation: Evacorp Pty Ltd v Penrith City Council [2019] NSWLEC 1540 Hearing dates: Conciliation conference on 16 August 2019 Date of orders: 06 November 2019 Decision date: 06 November 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure "A" hereto. (2) Pursuant to section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. (3) The appeal is upheld. (4) Development Application DA17/0893 for the demolition of existing structures, the removal of 6 trees and the construction of 5 x 2-storey townhouses and 1 2-storey villa, with at grade parking for 7 cars, and landscaping, fencing, storm water and drainage works on land at 17 Stafford Street, Kingswood NSW 2747, is approved subject to the conditions contained in Annexure "A" hereto. Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing (townhouses) – amended plans- conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Penrith Local Environmental Plan 2010 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55 – Remediation of Land Texts Cited: Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (2004) Category: Principal judgment Parties: Evacorp Pty Ltd (Applicant) Penrith City Council (Respondent) Representation: Counsel: E Rowles (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Winter Legal Pty Ltd (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2018/392229 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the actual refusal of its development application DA/17/0893. As amended, the development application seeks approval for the demolition of existing structures, the removal of 6 trees and the construction of 5 two-storey townhouses and a two storey villa. The development also proposes at grade parking for 7 cars, landscaping, fencing, stormwater and drainage works. The development is proposed at 17 Stafford Street, Kingswood. 2. The original development application was refused by Council on 20 December 2018 and the Applicant has appealed that refusal to the Court. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 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 (LEC Act) between the parties, which was held on 16 August 2019. I presided over the conciliation conference. Through the conciliation process, the parties have agreed an amended design for the development. 4. 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 of the EPA Act. 5. 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. The Council states that upon receipt of the development application the subject of the appeal it undertook an assessment of the site having regard to its aerial mapping facility and site usage records. The Council concludes that the assessment demonstrates that the site was unlikely to have been used for a potentially contaminating activity. On this basis, having regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I accept that the likelihood of contamination is low. 2. Pursuant with the provisions of the Penrith Local Environmental Plan 2010 (LEP 2010), the site is zoned R3 Medium Density Residential. The proposed development, multi dwelling housing, is permissible with consent. 3. 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 2010 and does not contain a heritage item (cl 10(1)(a) and (b) of SEPP ARH). 4. 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. 5. The consent conditions allocate a unit for the purposes of affordable housing and require it to be managed by a community housing provider for 10 years. 6. As required by cl 15(1) of SEPP ARH, I have taken into consideration the provisions of the Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development (2004), to the extent that those provisions are consistent with SEPP ARH. 7. 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. 8. The amended development application complies with the relevant standards in LEP 2010. 9. 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 Court orders that: 1. Leave is granted to the Applicant to rely upon the amended plans and document listed in condition 1 of Annexure "A" hereto. 2. Pursuant to section 8.15(3) of the EP&A Act, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. 3. The appeal is upheld. 4. Development Application DA17/0893 for the demolition of existing structures, the removal of 6 trees and the construction of 5 x 2-storey townhouses and 1 2-storey villa, with at grade parking for 7 cars, and landscaping, fencing, storm water and drainage works on land at 17 Stafford Street, Kingswood NSW 2747, is approved subject to the conditions contained in Annexure "A" hereto. …………………………… D M Dickson Commissioner of the Court Annexure A (177 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: 06 November 2019