Land and Environment Court New South Wales Medium Neutral Citation: Siscus Holdings Pty Ltd v Georges River Council [2020] NSWLEC 1169 Hearing dates: Conciliation conference on 25 February 2020, 11 March 2020 and 1 April 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [12] Catchwords: DEVELOPMENT APPLICATION – boarding house development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Kogarah Local Environmental Plan 2012 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: Siscus Holdings Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2019/191686 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 Georges River Council (Council) of Development Application DA2018/0213 (the DA). In exercising the functions of consent authority the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 638.6m2 an allotment of land with an area of, and identified as Lot 58 DP 2013, at 14 English Street, Kogarah (the site). The DA, as originally submitted to Council on 31 May 2018, sought consent for construction of a boarding house in two separate 7 storey towers over a common basement parking level. The two towers contained a total of 40 double rooms (80 person occupancy), including one manager's room. Those plans were placed on public notification between 13 June 2018 and 6 July 2018. The application was subsequently amended, with revised plans submitted on 11 December 2018 (the Amended DA). The Amended DA reduced the number of boarding rooms to 34 (68 person occupancy) and number of storeys to six. The Amended DA plans were publicly notified between 19 December 2018 and 3 February 2019. The applicant commenced proceedings in the Court on 20 June 2019, based on the Amended DA. 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 25 February 2020 and 11 March 2020. That conciliation conference was terminated on 19 March 2020. A second s34 conference was held on 1 April 2020. I presided over both conciliation conferences. The first conciliation conference on 25 February commenced with a view of the site and immediate surroundings. At the site view oral submissions were made by a number of residents, or their representatives, including residents of the adjoining apartment building at 16-18 English Street. 4. Prior to the second conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to them. That agreement was based on further amended plans, prepared by BKA Architecture, and identified as Revision D dated 17.01.2020 (the Agreed Plans). 5. The main changes between the Amended DA plans and the Agreed Plans are: 1. Each of the towers are reduced from six storeys to partly four and partly five storeys, with the fifth part-level in each tower being occupied by a resident common room opening to a communal rooftop open space. 2. The total number of boarding rooms has been reduced from 34 to 19 (including manager's room). 3. The number of motorcycle and bicycle spaces has been reduced from 8 of each to 4 of each, with nine car spaces retained. 4. The footprint area of both towers has been reduced slightly, with additional landscaping provided in the front, rear and southern side boundary setbacks. 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 DA, as amended, subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. Those matters and how they are satisfied are set out in in paragraphs 7 to 10 below. Satisfaction of jurisdiction 1. In relation to the Kogarah Local Environmental Plan 2012 (KLEP) 1. The site is zoned R3 Medium Density Residential and boarding houses are permissible with development consent. 2. The site is subject to a maximum permissible height of buildings of 21 metres and the maximum building height of the proposal is 16.95 metres. 3. The site is subject to a maximum permissible Floor Space Ratio control (FSR) of 2:1. The proposal has an FSR of 1.163:1 1. In relation to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) 1. The site is located within an accessible area as it is 375m walking distance from Carlton Railway Station. 2. The communal open areas located on the rooftops receive more than 3 hours direct sunlight between 9am and 3pm in mid-winter. 3. It is considered that the design of the development is compatible with the character of the local area. 4. Pursuant to section 30 of the SEPP ARH: 1. Two communal living rooms are provided; 2. No boarding room has a gross floor area of more than 25 square metres; 3. No boarding room will be occupied by more than 2 adult lodgers; 4. Adequate bathroom and kitchen facilities are available within the boarding rooms; and 5. At least one parking space has been provided for a bicycle and motorcycle for every 5 boarding rooms. 1. In relation to the State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) a "Detailed Site Investigation" report by EI Australia, dated 11 November 2019 (the EI Australia report), was provided to the respondent. In accordance with Clause 7 of SEPP 55 the Council has considered whether the land is contaminated and is satisfied that the land is suitable (or will be suitable, after remediation) for the purpose for which the development is to be carried out. Furthermore the conditions of consent that comprise Annexure A of the s34 agreement between the parties include conditions to ensure satisfaction of the recommendations of the EI Australia report and address any unexpected contamination encountered during construction. I am therefore satisfied that the requirements of SEPP 55 have been satisfied. 2. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP) a revised Certificate number 922075M_04 dated 16 March 2020 has been provided demonstrating compliance with the BASIX SEPP, and the conditions of consent require compliance with this Certificate. 3. 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. 4. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended plans: Plan Name Drawing number Revision Date Prepared by Architectural plans Cover Sheet DA-100 D 17/01/2020 BKA architecture Site Plan+ Streetscape character Sheet 01 DA-101 D 17/01/2020 BKA architecture Site Plan+ Streetscape character - Sheet 02 DA-102 B 17/01/2020 BKA architecture Perspective – Sheet 01 DA-103 D 26/02/2020 BKA architecture Perspective – Sheet 02 DA-104 C 10/02/2020 BKA architecture Perspective – Sheet 03 DA-105 B 17/01/2020 BKA architecture Basement Floor Plan DA-110 D 17/01/2020 BKA architecture Ground Floor Plan DA-111 E 26/02/2020 BKA architecture Level 01 Plan DA-112 D 17/01/2020 BKA architecture Level 02 Plan DA-113 D 17/01/2020 BKA architecture Level 03 Plan DA-114 D 17/01/2020 BKA architecture Level 04 Plan DA-115 D 17/01/2020 BKA architecture Roof Level Plan DA-116 D 17/01/2020 BKA architecture Section 01 DA-201 E 26/02/2020 BKA architecture Section 02+Section 03 DA-202 E 26/02/2020 BKA architecture Elevations - East +West DA-203 F 26/02/2020 BKA architecture Elevations – South DA-204 E 26/02/2020 BKA architecture Elevations - North DA-205 E 26/02/2020 BKA architecture Section - Ramp DA-207 C 26/02/2020 BKA architecture Sun Eye Diagrams - Sheet 1 DA-350 B 17/01/2020 BKA architecture Sun Eye Diagrams - Sheet 2 DA-351 B 17/01/2020 BKA architecture Sun Eye Diagrams - Sheet 3 DA-352 C 16/03/2020 BKA architecture Sun Eye Diagrams - Sheet 4 DA-353 B 16/03/2020 BKA architecture Shadow diagrams- June 21- 9 am DA-310 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 10 am DA-311 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 11 am DA-312 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 12 pm DA-313 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 1 pm DA-314 D 17/01/2020 BKA architecture Shadow diagrams- June 21- 2 pm DA-315 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 3 pm DA-316 E 17/03/2020 BKA architecture Shadow diagrams- June 21- 4 pm DA-317 B 17/03/2020 BKA architecture Area Calculation Diagrams DA-401 D 17/01/2020 BKA architecture Finishes Board DA-501 F 26/02/2020 BKA architecture Landscape Plans Landscape Plan LPS34 20-85 G 17/03/2020 Conzept Specification & Detail LPS34 20-85 F 17/03/2020 Conzept 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, 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 of $13,800 within 14 days of these orders. 2. The appeal is upheld. 3. Development Consent be granted to DA2018/0213 for the demolition of existing structures and construction of a part four, part five storey boarding house comprising 18 rooms plus a manager's room and basement car parking with 9 car spaces at 14 English St, Kogarah subject to conditions contained in Annexure A. …………………… J Bindon Acting Commissioner of the Court Annexure A (355 KB) Plans Part 1 (12.1 MB) Plans Part 2 (12.6 MB) ********** 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 April 2020