Land and Environment Court New South Wales Medium Neutral Citation: Cornelus De Groot trading as Cactus Design & Drafting v Campbelltown City Council [2020] NSWLEC 1120 Hearing dates: Conciliation conference on 10 January 2020 and 5 February 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Class 1 Before: Smithson C Decision: Refer to [17] Catchwords: DEVELOPMENT APPLICATION – boarding house –conciliation conference – agreement between the parties – orders Legislation Cited: Cambelltown 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 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Cornelus De Groot trading as Cactus Design & Drafting (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: P Holland (Solicitor) (Applicant) G Corradini-Bird (Solicitor) (Respondent) Solicitors: McCullough Robertson Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 19/286760 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Cornelus De Groot trading as Cactus Design & Drafting (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Campbelltown City Council (the Council) of Development Application No.3095/2016/DA-BH (the application). 2. The application the subject of the appeal initially sought consent under the EPA Act for the for the demolition of existing structures and construction of a 14 room boarding house with common rooms, common open space and ground floor parking for 3 cars, 2 motorcycle spaces and 4 bicycle spaces and landscaping on the land described as Lot 251 DP 32082, also known as 30 Bradbury Avenue, Campbelltown (the site). 3. The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R2 Low Density Residential zone in which the site is situated under the Campbelltown Local Environmental Plan 2015 (the LEP). 4. The application was notified with 6 objections lodged raising a range of issues including concern with the impacts on traffic, parking and local amenity, the design, and the nature and management of the development. The application was subsequently refused for similar reasons and due to the development being incompatible with the local character and an overdevelopment of the site. 5. Following lodgement of the appeal, the Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). I presided over that conciliation at which an agreement under s 34(3) of the LEC Act was filed by the parties based on an amended application. 6. The amended application decreased the number of boarding rooms to 9 and increased on-site car parking for cars and motorcycles. The design was also amended to better reflect the character of the local area. 7. On the basis of these amended plans, the parties indicated that the Council's contentions and those issues raised by objectors, to the extent that they were relevant considerations, had been resolved. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court can make in the proper exercise of its functions. In doing so, I make no judgment on the merits of the development. 9. I am satisfied that the parties' decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3). In this regard a Summary of Jurisdictional Matters was filed with the agreement which I have reviewed and note as follows. 10. The development application was made with the consent in writing of Hung Yan Tse, who is the Sole Director of Palmier Proprietary Limited, being the owner of the land to which the application relates. 11. The development does not contravene any development standard in the LEP, or any other applicable environmental planning instrument. 12. In accordance with Clause 7 of State Environmental Planning Policy No 55—Remediation of Land, the Council has considered whether the land is contaminated and is satisfied that the land is not presently contaminated (but has the potential to become contaminated during demolition works in circumstances where the existing dwelling house contains asbestos) and is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. 13. Further, if the land requires remediation to be made suitable for the purpose for which the development is proposed, the land can and will be remediated before the land is used for that purpose. Conditions of consent address the disposal of asbestos in particular. 14. Pursuant to clauses 26 and 27 of the ARH SEPP, I am satisfied that Division 3 of that SEPP applies to the development and that the development does not contravene any applicable development standard referred to in the ARH SEPP. 15. Further, in accordance with clause 16A of the ARH SEPP, the Council has taken into consideration whether the design of the development is compatible with the character of the local area. I am satisfied with the Council's determination that, as amended, the development is compatible with the character of the local area. 16. I also note that the required Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate. 17. Accordingly, the Court orders that: 1. The Applicant is granted leave to amend the Applicant's details on the Class 1 Application filed 13 September 2019 to clarify that the Applicant is 'Cornelus De Groot trading as Cactus Design & Drafting'. 2. The Applicant is granted leave to rely on the following amended plans and documents filed 28 February 2020 referred to in Condition 1 of Annexure 'B', copies of which are marked Annexure 'A': Drawing / Sheet Number Revision / Issue Author Dated DA01C C Cactus Design & Drafting 21/01/2020 DA02C C Cactus Design & Drafting 21/01/2020 DA03C C Cactus Design & Drafting 21/01/2020 DA04C C Cactus Design & Drafting 21/01/2020 DA05C C Cactus Design & Drafting 21/01/2020 DA06C C Cactus Deign & Drafting 21/01/2020 DA07C C Cactus Design & Drafting 21/01/2020 DA08C C Cactus Design & Drafting 21/01/2020 DA09C C Cactus Design & Drafting 21/01/2020 DA10C C Cactus Design & Drafting 21/01/2020 DA11C C Cactus Deign & Drafting 21/01/2020 DA12C C Cactus Design & Drafting 21/01/2020 DA13C C Cactus Design & Drafting 21/01/2020 C01 E Gilcon Structural Engineers 04/02/2020 Documents BASIX Certificate No. 1073071M 24 February 2020 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development application No.3095/2016/DA-BH for the demolition of existing structures and construction of a 9 room boarding house with 2 common rooms, common open space and ground floor parking for 5 cars, 3 motorcycle spaces and 4 bicycle spaces and landscaping on the land described as Lot 251 DP 32082, also known as 30 Bradbury Avenue, Campbelltown NSW 2560 (Site) is approved subject to the conditions set out in Annexure 'B'. ………………………………… Jenny Smithson Commissioner of the Court Annexure A (2.78 MB) Annexure B (85.4 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: 13 March 2020