Land and Environment Court New South Wales Medium Neutral Citation: Moini Pty Ltd ATF Newtown Trust v City of Sydney Council [2020] NSWLEC 1096 Hearing dates: Conciliation conference on 13 February 2020 Date of orders: 05 March 2020 Decision date: 05 March 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The Applicant is granted leave to rely on the Amended Remedial Action Plan prepared by Reditus, dated 29 January 2020. (2) The Applicant is granted leave to rely on the Endorsement of Remedial Action Plan prepared by ZOIC, dated 29 January 2020. (3) The appeal is upheld. (4) Development consent is granted to development application No. D/2018/635 to demolish the existing building (excluding front facade) and construction of a three storey boarding house consisting of 24 rooms and ancillary facilities in respect of the property known as 66 Brocks Lane, Newtown and being all that land comprised in Lot B DP 338150, subject to the conditions of consent in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION — boarding house — conciliation conference — agreement between the parties — orders Legislation Cited: 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 State Environmental Planning Policy No 55 – Remediation of Land Sydney Local Environmental Plan 2012 Category: Principal judgment Parties: Moini Pty Ltd ATF Newtown Trust (Applicant) City of Sydney Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) N Sandstrom (Solicitor) (Applicant) A Singh (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) City of Sydney Council (Respondent) File Number(s): 2018/242703 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the deemed refusal by the City of Sydney Council ("Council") of Development Application D/2018/635 ("the DA"). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 541.5m2 (by survey) parcel of land identified as Lot B DP 338150 at 66 Brocks Lane, Newtown ("the site"). The DA, as submitted to Council on 8 June 2018, sought consent for demolition of the existing building (excluding the front façade) and the construction of a part two, part three storey boarding house containing 25 rooms and ancillary facilities, with parking for five motorcycles. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties. Acting Commissioner Blakely presided over the conciliation conference, held on 29 January 2019 and 1 July 2019. The s34 conference was terminated by Blakely AC on 1 July 2019 and the matter was subsequently listed for a two day hearing before me on 13 and 14 February 2020. 4. On 15 January 2020 the applicant filed amended DA documentation with the Court along with a request to rely on that documentation in the proceedings. The plans and associated documentation filed on 15 January included amended architectural plans prepared by Cedar Design and dated 15 February 2019, hereafter referred to as the "Revision H" plans, and an amended BASIX certificate dated 27 March 2019. On 24 January 2020 leave was granted by the Court to rely on the material filed on 15 February along with an Amended Remedial Action Plan prepared by Reditus, dated 19 January 2020 as filed with the Court on 24 January 2020. The amended application was renotified from 24 January to 7 February 2020. 5. On 12 February 2020 the parties advised the Court that they had reached an agreement and requested a second s34 conciliation conference be convened the following day, instead of the hearing. That request was granted and I presided over the second s34 conciliation on 13 February 2020 at which the agreement and conditions of consent were discussed. Leave was also sought to rely on two further documents being a further "Amended Remedial Action Plan" prepared by Reditus, dated 29 January 2020 and the "Endorsement of Remedial Action Plan" prepared by ZOIC, dated 29 January 2020. The final agreement was filed with the Court later that day. 6. The main changes between the plans as originally submitted to Council (the Revision C plans) and the Revision H plans the subject of the s34 agreement are: 1. The ground floor plan has been reconfigured such that the rear setback and northern side setback are increased, the common outdoor open space located in the rear is quadrupled in size from 20m2 to 81m2, the common room is relocated to the north-west corner of the building and increased in size, the building footprint is extended in an easterly direction behind the retained façade to partly align with the street boundary, a new foyer opens directly to the street, the bicycle and motorcycle parking areas are relocated to the north-east portion of the site, one stairwell is removed and the number of rooms on this level is increased from 7 to 8; and 2. the first floor plan has been reconfigured such that the setback from the street is increased, the common balcony and one stairwell are removed; and 3. the second floor plan has been redesigned such that the front and northern setbacks are increased, the building mass is smaller and more central to the site, one stairwell is removed and the number of rooms on this level is reduced from 6 to 4; and 4. the elevations are changed to reflect the revised floor plans, the windows are generally larger to improve internal amenity and are offset or screened to enhance privacy, and the design, including external materials and finishes, changed to better integrate with the streetscape and conservation area generally. 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph 8 below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters are: 1. In relation to the Sydney Local Environmental Plan 2012 ("SLEP 2012"), I am satisfied that the development is for the purpose of a boarding house, which is a use permissible with consent in the R1 General Residential zone. I also accept the advice of the parties and the evidence submitted with the amended application set of drawings, that the development does not contravene any development standard in SLEP 2012. 2. In relation to State Environmental Planning Policy No 55 – Remediation of Land ("SEPP 55"), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation, a detailed environmental site assessment and revised Remedial Action Plan (dated 29 January 2020), endorsed by a NSW EPA Accredited Site Auditor, have been submitted to demonstrate that the site is capable of being remediated to be suitable for the boarding house use. Those documents along with the relevant conditions of consent that accompany the agreement satisfy the requirements of SEPP 55. 3. In relation to State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH") I am satisfied with the advice of the parties, and from my own review of the Revision H plans and associated documents, that the proposal satisfies the relevant requirements of this instrument, including size and solar access requirements to communal spaces, room sizes and accessibility requirements. I am also satisfied that lack of car parking is able to be approved and is considered acceptable, as agreed between the parties, for the reasons set out in the Statement of Environmental Effects prepared by Planning Ingenuity and dated 5 June 2018. 4. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 ("SEPP BASIX") a revised BASIX Certificate, number 932481M_03 dated 27 March 2019 has been provided. Disposal of proceedings in accordance with the parties' decision: 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' agreement. 2. The Court orders: 1. The Applicant is granted leave to rely on the Amended Remedial Action Plan prepared by Reditus, dated 29 January 2020. 2. The Applicant is granted leave to rely on the Endorsement of Remedial Action Plan prepared by ZOIC, dated 29 January 2020. 3. The appeal is upheld. 4. Development consent is granted to development application No. D/2018/635 to demolish the existing building (excluding front facade) and construction of a three storey boarding house consisting of 24 rooms and ancillary facilities in respect of the property known as 66 Brocks Lane, Newtown and being all that land comprised in Lot B DP 338150, subject to the conditions of consent in Annexure 'A'. …………………… J Bindon Acting Commissioner of the Court Annexure A (196 KB) ********** 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: 09 March 2020