Seaspray Corp Pty Ltd v Penrith City Council

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a two-storey co-living housing development comprising 29 rooms, at 31-33 Walter Street, Kingswood. The development application was refused by the respondent on 13 June 2023. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
2. 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 19 November 2024. I presided over the conciliation conference.
3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was recorded in a signed agreement filed the same date.
4. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments reduce the number of boarding rooms to 25, re-orientates the building so that vehicular access is from Park Avenue, increases the deep soil area for landscaping, introduces recesses in each façade presentation in order to achieve better articulation and compatibility in the streetscape, and makes changes to the materials and finishes.
5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites, which sets out the jurisdictional requirements for the making of orders in accordance with the agreement. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.