Housing Plus v Orange City Council [2019] NSWLEC 1622

Land and Environment Court New South Wales

Medium Neutral Citation: Housing Plus v Orange City Council [2019] NSWLEC 1622 Hearing dates: Conciliation conference on 13 December 2019 Date of orders: 17 December 2019 Decision date: 17 December 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [18] Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing – social and affordable housing – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Orange Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55 – Remediation of Land Texts Cited: Orange Development Control Plan 2014 Category: Principal judgment Parties: Housing Plus (Applicant) Orange City Council (Respondent) Representation: Counsel: T Messenger (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent)

Solicitors: Messenger & Messenger (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2019/310219 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 141/2019(1) by Orange City Council (hereafter the Council) for the demolition of existing structures and construction of multi-dwelling housing for 10 dwellings on Lot 78 DP 1172183, also known as 78 Lantana Place, Orange (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 December 2019 in Court. I presided over the conciliation conference. There were no objectors heard at the conciliation. 4. Prior to the conciliation conference, and following expert discussion, the applicant sought to amend the associated plans to the DA to be relied upon in the agreement. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 141/2019(1) with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 141/2019(1), with conditions described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the: State Environmental Planning Policy 55 – Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Orange Local Environmental Plan 2011 (OLEP). In addition, the Orange Development Control Plan 2014 (ODCP) is of consideration to grant consent to the DA. 8. The proposed development is required to comply with the provisions of SEPP BASIX. A BASIX Certificate that relates to the proposed development is identified in the conditions of consent in compliance with the SEPP BASIX. 9. In compliance with the requirements of SEPP 55 and to address the existing covenant on the site relating to testing for chemical residues, the DA is supported by a detailed contamination assessment which identifies no further investigation or remediation of the site as necessary. The parties therefore agree that the proposed development on the site complies with cl 7 of the SEPP 55. 10. The parties agree that the relevant provisions of the OLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the R1 General Residential Zone. The proposed development is permissible in the zone and the objectives of the zone, as specified in cl 2.3 of the OLEP, are satisfied. The parties agree that the proposed development satisfies all relevant development standards. 11. Based on the amended plans and supporting documents to the DA, the issues raised by objectors that relate to the controls as specified in the ODCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential adverse impacts as they relate to visual, traffic, noise and parking. There are no amenity impacts, including privacy, solar access or acoustic that should result in the refusal of the DA. 12. The parties agree that the condition on consent that limits the number of dwellings used for social housing to six, which are age specific, relates to the demonstrated need for services. 13. The parties agree that the requirements of the ODCP are complied with based on the amended plans and conditions of consent. The proposed development was publicly notified in accordance with the ODCP. During the initial notification period for this DA under appeal, 47 submissions plus two petitions were received by Council, of which 31 were in objection. These submissions were considered by the parties, prior to reaching the agreement, and they agree the matters raised are resolved to their satisfaction. 14. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions. 15. Based on the amended plans and supporting documents to the DA, the contentions as raised by residents and jurisdictional requirements are resolved to the satisfaction of the parties. 16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 141/2019(1) should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 17. 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. 18. The Court orders that: 1. Leave is granted to the Applicant to rely on the Addendum to Statement of Environmental Effects dated 29 November 2019. 2. Leave is granted to update the plans in support of the Application Class 1 as follows: Plans filed with Court Version considered by Council to be substituted in Application Class 1 A002 Issue F A002 Issue G A003 Issue H A003 Issue I A004 Issue I A004 Issue J A007 Issue F A007 Issue G A008 Issue F A008 Issue G