COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA 21/0225 for the demolition of existing structures and construction of a 2-3 storey boarding house containing 64 rooms and a manager's residence, Basement Parking, Landscaping and Stormwater works (the Proposed Development) at 27-28 Park Avenue Kingswood legally described as Lot 11 and Lot 12 in DP 29528 (the Site).
The proceedings were listed for hearing on 20 March 2023 and at the commencement of the hearing the parties applied to have the matter listed for conciliation conference. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 20 March 2023. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.
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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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 parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note. I set out a summary of the explanation given by the parties which I adopt as my reasons.
The Development Application for the Proposed Development predates 1 March 2022 which means that the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) continue to apply.
A development application may be made by the owner of the land to which the development application relates or by any other person, with the consent of the owner of that land.
The Site is owned in part by Aziz Elias Kiraz, Jennifer Kiraz and XL Project Developments Pty Ltd. Owners' consent from Mr and Mrs Kiraz and XL Project Developments Pty Ltd were provided pursuant to cl 49(1), EPA Regulation, with the Development Application on 6 April 2021 and filed with the Class 1 Application.
There are a number of jurisdictional prerequisites contained in the Penrith Local Environmental Plan 2010 (PLEP). The site is zoned R3 - Medium Density Residential under the PLEP. The Proposed Development is characterised as a "boarding house" which is permissible in the R3 Medium Density Residential zone with development consent.
Although achieving the objectives of the R3 Zone is not a pre-condition to the grant of consent, consideration of them by the consent authority is required under cl 2.3 of the PLEP. The parties agree that the Proposed Development is compatible with the objectives of the R3 Zone which are as follows:
To provide for the housing needs of the community within a medium density residential environment.
To provide a variety of housing types within a medium density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To provide for a concentration of housing with access to services and facilities.
To enhance the essential character and identity of established residential areas.
To ensure that a high level of residential amenity is achieved and maintained.
To ensure that development reflects the desired future character and dwelling densities of the area.
The survey information included in the Development Application, read in conjunction with the architectural plans filed with the Court, in particular drawing A1-021, demonstrates that the Proposed Development does not contravene the height of buildings development standard of 8.5m (cl 4.3 of the PLEP).
There is no prescribed maximum floor space ratio for the site under cl 4.4 of the LEP.
There are no heritage items on or in the vicinity of the site, and the Site is not located in a heritage conservation area. Accordingly, the jurisdictional requirements in cl 5.10 of the PLEP do not arise.
The Site is affected by 1% Annual Exceedance Probability (AEP) local overland flow flood with a maximum level Reduced Level (RL) 36.4m Australian Height Datum (AHD). The finished floor levels of the Proposed Development are compliant with the free-board requirement under cl 5.21 of the PLEP. The parties have also agreed to conditions of development consent at Conditions 19-23 to ensure compliance with the flood planning requirements of the PLEP.
The Development Application seeks consent for earthworks, and I am satisfied that the Respondent has considered the matters identified in cl 7.1(3) of the PLEP as part of the assessment of the amended plans and conclude that the proposed earthworks and excavation will not have a detrimental impact on the soil stability or the amenity of the neighbouring uses.
Similarly, I am satisfied that the matters arising in cl 7.4 'sustainable development' and cl 7.6 'salinity', have been considered by the Respondent as part of the assessment of the amended plans.
Before granting development consent for the Proposed Development, the consent authority must be satisfied of the following matters pursuant to cl 7.7 of the PLEP in relation to the availability of services:
(a) the development will be connected to a reticulated water supply, if required by the consent authority, and
(b) the development will have adequate facilities for the removal and disposal of sewage, and
(c) if the development is for seniors housing, the development can be connected to a reticulated sewerage system, and
(d) the need for public amenities or public services has been or will be met.
I have formed the requisite state of satisfaction having considered the Statement of Environmental Effects prepared by Andrew Martin Planning++ filed with the Class 1 Application.
The objectives of cl 7.30 of the PLEP apply to the R3 Zone and the objectives are to
1. ensure development incorporates planning and design measures to reduce the urban heat island effect in Penrith, and
2. ensure buildings and outdoor spaces are thermally comfortable for people living and working in Penrith, particularly during summer, and
3. promote the cooling benefits of green infrastructure and water in the landscape.
Development consent must not be granted to the Proposed Development unless the consent authority is satisfied, pursuant to cl 7.30(3) of the PLEP, that planning and design measures are incorporated to reduce the urban heat island effect that -
(a) maximise green infrastructure, and
(b) retain water in the landscape, and
(c) use design measures to ensure the thermal performance of the development achieves a high degree of passive cooling, and
(d) use building, paving and other materials that minimise heat impacts, and
(e) reduce reliance on mechanical ventilation and cooling systems, to conserve energy and to minimise heat sources.
I have considered the Joint Expert Report of James Lovell, Donna Clarke, Joseph Panetta and Brett Newbold on Town Planning and Urban Design Issues dated and filed 2 March 2023 where urban heat is considered and there are a number of references in paragraphs 17, 21, 22 and 23 and I note the agreement between the experts regarding the amended plans which address the planning and design measures to reduce the urban heat island as required by cl 7.30 of the PLEP.
The parties agree that the remainder of the additional local provisions in Part 7 of the PLEP are not relevant to the Proposed Development.
Although the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) has been repealed and the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) came into effect on 26 November 2021, the Development Application is saved by s 2(1)(a) of Sch 7A to SEPP Housing and as a result, the ARH SEPP, as it was in force on 25 November 2021, applies to the Proposed Development (CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97 at [55]).
The parties state that the Court can be satisfied that consideration has been given to the provisions of ARH SEPP in the preparation of the amended plans and that the ARH SEPP is adequately dealt with. In particular, the parties agree that the Court can be satisfied that in relation to Part 2 Division 3 of the ARH SEPP that:
1. the Site satisfies the provision of cll 26 and 27(1) of the ARH SEPP;
2. the amended plans comply with all the 'do not refuse' provisions at subcll 29(1) and 29(2) of the ARH SEPP;
3. in respect to the development standards at cl 30 of the ARH SEPP the Proposed Development achieves the following:
1. there is a communal living room provided (cl 30(1)(a));
2. none of the boarding rooms exceeds the control of 25 square metres for gross floor area excluding kitchen and bathroom facilities;
3. the plan of management limits each room to a maximum of 2 lodgers;
4. adequate bathroom and kitchen facilities are provided for each lodger;
5. a boarding house manager is provided; and
6. there are adequate bicycle and motor bike facilities in accordance with cl 30(1)(h).
1. The design of the proposed development is compatible with the character of the local area. There is no disagreement between the parties' experts in this regard.
The Site is located immediately north of the Sydney Trains rail line that runs in an east-west direction. The Site is separated from the state rail land by the Park Avenue road reserve. On 23 April 2021, the Development Application was referred to Sydney Trains for consideration pursuant to cl 86 of State Environmental Planning Policy (Infrastructure) 2007 (an obligation which, following the repeal of this Environmental Planning Instrument, is now contained in the transferred provision s 2.99 of State Environmental Planning Policy (Transport and Infrastructure) 2021). Clause 86 (and s 2.99) relates to development that involves certain excavation works that are located in, above, below or adjacent to a rail corridor, which is relevant to the Proposed Development.
In their response dated 24 May 2021 filed with the Respondent's Bundle of Documents on 6 March 2023, Sydney Trains raised no objection to the Development Application subject to imposing operational conditions relating largely to construction methods. These conditions are included in the agreed conditions of consent.
The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to all of NSW and s 4.6 relates to contamination and remediation to be considered in determining a development application. In relation to s 4.6(1) of the Resilience and Hazards SEPP, the parties agree that the Court can be satisfied that consideration has been given to this matter and that consent can be granted.
For the purposes of s 4.6(2) and 4.6(4) of the SEPP, as identified at page 14 of the Statement of Environmental Effects dated March 2021, the Site is located within an established residential area with residential land uses continuing to the present and has a low risk for potential land contamination.
Accordingly, the Court is satisfied that the Development Application is not on land specified in s 4.6(4) because there is no knowledge of development either being carried out for a purpose of a development in Table 1 of the Contaminated Land Planning Guidelines or such development being permissible and thereon satisfies s 4.6(2) of the Resilience and Hazards SEPP.
The parties agree that the amended plans can be approved having regard to the provisions of the Penrith Development Control Plan 2014 (DCP) and s 4.15(1)(a)(iii) of the EPA Act, also noting that the provisions of the DCP are not, of themselves, statutory requirements. For the purposes of the merit assessment by the Respondent, the parties agree that the amended plans comply with the relevant objectives of the DCP controls. The parties' experts deal with the relevant controls in the Joint Expert Reports filed with the Court and the Applicant otherwise addresses the relevant matters from page 31 of the Statement of Environmental Effects.
The original development application plans were appropriately notified by the Respondent between 19 April 2021 and 3 May 2021 in accordance with the DCP. The amended plans otherwise address the issues raised by the submissions of the objectors.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
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]
Notations:
The Court notes that:
1. The Council, as the relevant consent authority, has (pursuant to cl 55 of the EPA Regulation) consented to the Applicant amending Development Application No DA 21/0225 in accordance with the amended plans and documents as follows:
Plan No. Description Prepared by Revision Date
A1-01 Cover Page CK Design C 1/3/23
A1-02 Survey Plan for plan of levels and detail Cibar Landsurveyors Original issue 26/11/2019
A1-03 BASIX Commitments CK Design C 1/3/23
A1-04 Site Analysis CK Design C 1/3/23
A1-05 Demolition Plan CK Design C 1/3/23
A1-06 Site Plan CK Design C 1/3/23
A1-07 Basement 2 Floor Plan CK Design C 1/3/23
A1-08 Basement 1 Floor Plan CK Design C 1/3/23
A1-09 Ground Floor Plan CK Design C 1/3/23
A1-010 First Floor Plan CK Design C 1/3/23
A1-011 Second Floor Plan CK Design C 1/3/23
A1-012 Roof Plan CK Design C 1/3/23
A1-013 Elevations CK Design C 1/3/23
A1-014 Elevations CK Design C 1/3/23
A1-015 Sections CK Design C 1/3/23
A1-016 Shadow Diagrams CK Design C 1/3/23
A1-017 Schedule Of Finishes CK Design C 1/3/23
A1-018 3d Perspective CK Design C 1/3/23
A1-019 3d Perspective CK Design C 1/3/23
A1-021 Height Plane Analysis CK Design C 1/3/23
A1-022 Fence Details CK Design C 1/3/23
A1-023 Tree Protection Zone CK Design C 1/3/23
A1-024 Tree Protection Zone Section CK Design C 1/3/23
A1-025 Survey Overlay CK Design C 1/3/23
A1-026 Sun Eye Views CK Design C 1/3/23
A1-027 Sun Eye Views CK Design C 1/3/23
A1-028 Side Sections CK Design C 1/3/23
A1-29 Calculations CK Design C 1/3/23
A1-1000 Notification Plan CK Design C 1/3/23
1 of 7 Landscape Site Plan Paul Scrivener H 13/3/23
2 of 7 Soil Calculations and Levels Plan Paul Scrivener H 13/3/23
3 of 7 Planting Plan Paul Scrivener H 13/3/23
4 of 7 Elevations - Sth & Nth Paul Scrivener H 13/3/23
5 of 7 Sections AA and BB Paul Scrivener H 13/3/23
6 of 7 Sections AA and BB Paul Scrivener H 13/3/23
7 of 7 Amendment Plan Paul Scrivener H 13/3/23
1 of 8 General Cover Page United Consulting Engineers E 13/3/23
2 of 8 Roof Drainage Plan United Consulting Engineers E 13/3/23
3 of 8 Ground Floor Drainage Plan United Consulting Engineers E 13/3/23
4 of 8 Basement 1 Drainage Plan United Consulting Engineers E 13/3/23
5 of 8 Basement 2 Drainage Plan United Consulting Engineers E 13/3/23
6 of 8 Drainage Details United Consulting Engineers E 13/3/23
7 of 8 MUSIC results and Details United Consulting Engineers E 13/3/23
8 of 8 Soil and Water Management Plan United Consulting Engineers E 13/3/23
The amended plans and documents were filed with the Court on 17 March 2023.
[5]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development consent is granted to Development Application No DA 21/0225 for the demolition of existing structures and construction of a 2‑3 storey boarding house containing 56 rooms and a Manager's Residence, basement parking, landscaping, stormwater works and lot consolidation at Lot 11 and Lot 12 DP 29528 commonly known as 27-28 Park Avenue, Kingswood NSW 2747 subject to the conditions of consent in Annexure A.
3. The Applicant pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment of the application to rely on the plans and documents at [35], as well as the earlier order pursuant to section 8.15(3) made by the Court in these proceedings on 16 December 2022, in the agreed amount of $34,000.00.
[6]
Annexure A
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: 24 March 2023