Station Lane Pty Ltd v Penrith City Council

Statutory context

1. The site is zoned R4 High Density Residential under Penrith Local Environmental Plan 2010 (PLEP). The zone objectives are as follows: • To provide for the housing needs of the community within a high density residential environment. • To provide a variety of housing types within a high density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To ensure that a high level of residential amenity is achieved and maintained. • To encourage the provision of affordable housing. • To ensure that development reflects the desired future character and dwelling densities of the area.
2. Boarding houses are permissible with consent in the zone. Relevant provisions of PLEP are considered below.
3. There is agreement that the otherwise repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) remains an applicable instrument for this DA because of savings provisions at Sch 7A of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). This is because the DA was made on 28 July 2020 and was not yet determined when SEPP Housing came into effect on 26 November 2021.
4. It will be seen Penrith Development Control Plan 2014 (PDCP) is also significant in this judgement.

Proposal

1. The DA, as amended, seeks consent for demolition of existing structures and tree removal and construction of a boarding house with three levels of accommodation, above ground level parking. There would be a total of 19 boarding rooms and one manager's room. Thirteen of the rooms would be single and six would be double rooms. The total accommodation would be up to 25 lodgers, plus management.
2. The considerably enclosed ground floor area would accommodate seven at-grade parking spaces, one of which would be an accessible space. There would also be bicycle and motorbike parking spaces, waste management arrangements and loading spaces at the ground level. Both indoor and outdoor communal space and areas of landscaping would also be located at the ground level.

Issues

1. By the conclusion of the hearing, and with some further time given in relation to the resolution of a contention relating to flooding (after some new information came into play), there were two primary issues in dispute between the parties. The first related to waste management, consideration of which takes up the bulk of this judgment. The second was concerned with the introduction of rental controls upon the boarding house. There were also objecting lay submissions in regard to the proposal which I attend to towards the end of the judgment.
2. Here I can also note the various expert reports which assisted in this matter, including in relation to recommendations on amendments to the proposal to assist in the resolution of contentions raised by Council.

• Joint traffic and parking expert report prepared by B Lo (applicant) and L Malaluan (Council) filed on 15 August 2024 (Ex 3)
• Joint town planning expert report prepared by J Wood (appointed by applicant) and Tina Christy (appointed by Council) filed on 15 August 2024 (Ex 4)
• Joint waste expert report prepared by G Dickens (applicant) and A Poole (council) filed on 15 August 2024 (Ex 5)
• Joint addendum waste expert report prepared by the same experts filed on 6 September 2024 (Ex 7)
• Joint arboricultural and landscape expert report prepared by C Mackenzie (applicant) and D Montgomery (Council) filed on 15 August 2024
• Joint addendum arboricultural expert report by the same experts filed on 6 September 2024 (Ex 8), and
• Joint planning and landscape expert report filed in Court during the course of proceedings (Ex 12).

Background

1. Council's nominated contention is that the DA does not demonstrate that the site can be appropriately and safely serviced in relation to waste. There are a series of points raised in regard to this topic in Ex 1, which can be essentially grouped into two. One is concerned with the design of waste infrastructure on the site. That is, the type, number and sizing of bins and area for bulky good collection and their spatial configuration at the ground level. This topic was essentially resolved to the satisfaction of Ms Poole through the most recent plan amendments (Ex 7 p 8).
2. The remaining waste management concern is quite involved. It has two inter-related dimensions to it: (1) waste truck accessibility and (2) the taking up of more sustainable waste management within the site's activities (ie maintenance and attending to the waste generated by boarders).
3. Important background factors are that:

• The applicant proposes a licensed privately-funded waste, recycling and green waste contractor service, by way of 6.4m long Small Rigid Vehicles, henceforth SRV (as put by Mr Dickens Ex 5 p 5).
• Use of an SRV is a practical vehicular option for site servicing having regard to the physical characteristics of Station Lane. That is: (1) the traffic experts were happy with the SRV turning capacities, and (2) there is insufficient width for Council's large waste truck to undertake required turning movements in Station Lane (the alternative long reverse movement to Union Road brings pedestrian safety risks).
• PDCP waste related objectives include (Part C5 clause 5.2(B)(d)): "To ensure new developments can be serviced efficiently and effectively by Council's standard waste service"
• While I was led to understand Council, in some parts of the Local Government Area (LGA), do employ SRVs for waste collection purposes, in the site environs it does not.
• At present Council services Station Lane residential apartments using the larger sized vehicle (10.5m) including, as a legacy factor, by way of a reverse movement along the length of Station Street.
• Council indicates it is still required to levy a domestic waste charge to the site under s 496(1) of the Local Government Act 1993, regardless of whether Council is carrying out the domestic waste collection service, or not. While Mr Dickens argued that the boarding house was a commercial operation and as such the "domestic" waste charge provisions would not apply, this argument was rejected by Ms Poole.
• Council raised concerns of past experiences where, over time, occupants of a site, where an approval was secured based on private waste services, sought to move back to the Council waste service regime, referencing duplicated costs (Ex 7 p 5).

Policy

1. I was taken to other PDCP provisions relating to waste management, including in regard to a nominated "waste hierarchy" (PDCP Part C5 clause (A)): "The 'waste hierarchy' … attempts to prioritise waste management based on reducing waste generation, re-using existing products, recycling products, recovering products and finally disposing responsibly of waste with the aim of reducing the need for landfill sites."
2. Council also raised related PDCP objectives including (PDCP Part C5 clause (B)(d)): "To minimise the overall environmental impacts of waste by: i) Encouraging development that facilitates ongoing waste avoidance and complements waste services offered by both Council and/or private contractors; ii) Requiring on-site source separation and other design and siting standards which assist waste collection and management services offered by Council and/or the private sector; iii) Encouraging building designs and construction techniques that minimise waste generation; iv) Maximising opportunities to reuse and recycle building and construction materials as well as other wastes in the ongoing use of a premise; and v) Reducing the demand for waste disposal."
3. The "lifting the bar" provisions at PDCP Part C5 clause F (b), included a requirement on applicants to demonstrate an ongoing commitment to waste avoidance and to "reduce the volume of waste generated by occupants" of the development by "setting targets" essentially consistent with "targets established in the NSW Waste Avoidance and Resource Recovery Strategy 2007".

Council seeks refusal of the DA on waste management grounds while also offering without prejudice conditions for the Court's consideration

1. Ms Poole sought a waste management response consistent with Council's policy for residential flat buildings, including a loading bay for the larger waste collection truck and a capacity for the vehicle to enter and existing in a forward direction. Ms Poole also indicated that (Ex 7 p 5): "The State Government have mandated FOGO to be provided to all residential properties and require the meeting of targets to improve resource recovery. The use of Councils service to meet the waste diversion targets is more cost effective than engaging a private contractor for all the resource recovery requirements."
2. Ms Poole attached to her evidence excerpts from the "NSW Waste and Sustainable Materials Strategy 2041", pages 7 and 25.
3. Mr Dickens indicated in his evidence that appropriate waste servicing can occur with the SRV and that FOGO (food organics and garden organics) bins would "be provided as required" (Ex 7 p 6).
4. Council suggested two conditions, without prejudice, to assist the Court should a decision to grant consent be made. Proposed Condition 7 is agreed by the applicant with the exception of the area in italics: "7. Prior to the issue of an Occupation Certificate, a positive covenant shall be created under section 88B and/or section 88E of the Conveyancing Act 1919 to the satisfaction of Council for the ongoing waste collection of the boarding house development on site. The positive covenant is to require the operator of the Development to enter into a private contract (not Council) for the collection of domestic waste generated at the boarding house development during the life span of the development or unless or until Council is able to service Station Lane residents with an SRV waste collection vehicle. The management of domestic waste is to be undertaken so as to achieve the waste diversion rate from landfill within the principles of the State Government Waste Avoidance and Resource Recovery Strategy of the day. Documents relative to the positive covenant shall be prepared and registered with NSW Land Registry Services. All costs associated with the creation of the covenant shall be borne by the applicant. In the event that Council is able to service Station Lane with an SRV waste vehicle, the positive covenant will be released."
5. The italicised text in Condition 7 goes to matters associated with "waste diversion rates from landfill" and the principles of "the State Government Waste Avoidance and Resource Recovery Strategy of the day".
6. Condition 8 is contested in full by the applicant. It provides for recording and annual reporting of waste management performance as follows: "8. Annually, the applicant shall provide to Penrith City Council a report incorporating but not limited to the following information: a) Detailed breakdown of the source separated waste components generated by the boarding house including but not limited to Food Organics and Garden Organics, Dry Recyclables, Residual Garbage, Mattresses and Bulky Household Goods b) Details of the technologies that will be employed to treat and process the waste components in a) to demonstrate the required waste diversion rate from landfill c) Location of the waste processing facilities employed. A copy of all private waste contracts and receipts for private waste collection fees / payments shall be kept on the premises and made available to Council on request."

Submissions

1. In closing oral submissions, Council emphasised two major concerns on the waste question. Each related to the principle that waste and recycling from the site should be undertaken by Council in accordance with PDCP requirements. These two concerns were, first, that collection by Council is the most effective way to ensure that Council's ambitions for sustainable waste management are delivered. Council indicated it reports annually to the NSW EPA on residential landfilling and resource recovery. As aside I note the advice that reports to Council by the private waste contractor would assist Council in ensuring that it is able to comply with its own reporting requirements (Respondent's Submissions on Conditions 6,7 and 8 (RSC) par 22). The second point raised in oral submissions was the inequity associated with, in a sense, the double payment of waste charges on the site. Although I also note the indication in RSC (par 24) that there was also a potential inequity of access to resources recovery services for residents of the boarding house when compared to other residents in the LGA. The upshot of this position of Council seemed to be that the site was unsuitable for the development as proposed because it does not allow for Council's larger waste truck (which employ sustainable waste management practices) to access the site safely.
2. Having regard to the particulars of the proposal before the Court, I understood Council to be concerned about more sustainable waste management delivery in accordance with the PDCP's referenced "waste hierarchy" and reductions in landfill waste volumes over time. They sought a reporting or verification system in the ongoing operation of the boarding house to that end. Condition 8 was seen to achieve that and included provisions for and reporting of FOGO waste collection which would, I understand, need to be separate from recyclable materials, and waste to landfill.
3. The applicant argued that reporting on waste had not been raised as an issue in the proceedings and that there is no provision in the Protection of the Environment Operations Act 1997 (POEO Act) or Protection of the Environment Operations (Waste) Regulation 2014 (Regulation) that require the "onerous task" required by proposed Condition 8 to be undertaken.

Framing the evaluative question

1. I think there are two interrelated elements to the evaluative decision before me on waste management. The first is whether consent is warranted mindful of the proposed private contractor (and SRV) waste collection and disposal arrangement, something at odds with PDCP (Part C5 clause 5.2(B)(d)), see [17]). I understand that Council sees this arrangement as resulting in a loss of the Council's capacity to help its community minimise the overall environmental impacts of waste (in this case from the boarding house) were the waste service to be provided otherwise than by itself.
2. The second and related evaluative element concerns the reasonableness of imposing more sustainable waste management conditions as proposed by Council in Conditions 7 and 8; including whether and how use of the private contractor (SRV-based) waste collection might still achieve sustainable waste management practices, similar to those required under PDCP.
3. Council's Conditions 7 and 8, would have it that this involves achievement of "waste diversion" over time (when compared to a base case of the status quo perhaps and includes, for Council, an FOGO aspect) and then the accounting for and reporting of this achievement of waste diversion.
4. As indicated, the applicant sees the requirements of Conditions 7 and 8 as involving an "onerous task" not otherwise required under POEO Act and Regulation.

Modified conditions relating to waste management and reporting are reasonable in the circumstances

1. Firstly, while I note the applicant's point that waste reporting was not raised during the hearing, I am not persuaded that much turns on that in this instance. Council's position is that the application be refused. It is within the scope of without prejudice considerations that this matter has arisen, and I note there was some consideration at least of the topic of sustainable waste management in Ex 7 (eg see comments of Mr Dickens at the top of p 6 and top of p 8).

Public interest aspects of more sustainable waste management

1. It need only be mentioned briefly here, the serious public interest dimensions to more sustainable waste management. A focus here is triggered by cl 7.4 of the PLEP and there is a particular association with intergenerational equity. The particular factors include diminishing cost-effective accessibility to landfill sites for residual waste, and of note here in relation to FOGO, the significant methane emissions (a highly significant greenhouse gas) from rotting food and green organic waste.

Current regulatory regime

1. In regard to the current waste management regulatory regime, at the conclusion of the in-person hearing, I invited the parties to provide information on any regulatory controls applying to private waste collection contractors linking to sustainable waste management practices. In response Council provided to the Court (on 24 October 2024) and set out some further particulars in relation to NSW Waste and Sustainable Materials Strategy 2041 (NSW Strategy), referenced in Ms Poole's evidence (RSC dated 24 October 2024 pars 18-21), as follows: "18.Council's waste collection service includes a separate [food organics and garden organics - FOGO] waste collection (that is separate to recyclable materials, and waste to landfill). 19.The NSW Waste and Sustainable Materials Strategy 2041 Stage 1 plan: 2021-2027 (the Strategy) sets out the NSW Governments strategy to collect food and garden organics (copy enclosed for ease of reference). As part of the Strategy, the EPA has proposed FOGO mandates which include: Certain businesses, including large supermarkets, institutions and hospitality businesses will be required to have a source-separated food organics collection from 1 July 2025. All NSW households will be required to have a source-separated FOGO collection from 1 July 2030 Large supermarkets will be required to report on surplus food donations to food charities from 1 July 2025. 20.The Strategy is not yet in force and the EPA are reviewing submissions from the consultation period, which ended on 19 July 2024. 21.As currently drafted, the proposed mandates do not contain additional reporting requirements for the collection of FOGO."
2. In respect to FOGO, the position seems to be that, and at odds with the evidence of Ms Poole (at [21]), Penrith City Council is ahead of the game, as far as NSW Waste and Sustainable Materials Strategy 2041 is concerned. Council's advice is that its service already includes separate FOGO waste collection, whereas the NSW Strategy would see that as a "household" requirement from July 2030. My own familiarity with FOGO style waste collection is that it is on offer from a local council, rather than a compulsory requirement upon households; similar generally to recycling services (there was no evidence or submissions to suggest something contrary).

Site's proposed waste management strategy

1. It is important to note that the DA does include an Operational Waste Management Plan (OWMP Ex C pp 117-143), and under proposed Condition 1, the development must be carried out substantially in accordance with that Plan. Under Section 6 of the OWMP, which is concerned with outlining roles and responsibilities for the proposal's operational waste management, responsibilities on the proposal's "management" include: "Coordinate the waste strategy within the site. Ensure all waste service providers submit monthly reports on all equipment movements and waste quantities/weights. Organise internal waste audits/visual assessments on a regular basis. … Manage any non-compliances/complaints reported through waste audits. Coordinate general waste and recycling collections. … Ensure effective signage, communication and education is provided to occupants, tenants, maintenance staff and cleaning contractors."
2. It is also noteworthy that it is a responsibility of the gardening/landscaping contractor to remove garden organics generated during garden maintenance activities (otherwise a part of the FOGO waste source) to recycle such waste "at an offsite location". It can be imagined that this aspect of maintenance would be subject to the audit trail indicated as a management responsibility already referenced above.

Acknowledging the proposal's public interest offerings

1. For me a significant positive factor for this DA is its alignment with the first, second and fifth of the R4 zone objectives (see [7]). To the extent that it may be practically achieved on this constrained site, a redesign to accommodate Council's standard large waste vehicle would also reduce the accommodation yield and therefore the project's alignment with these objectives. The site does have constraints but it also would deliver on providing for housing needs. I do not see this lack of access for Council's regular waste service as grounds for refusal of the application.
2. I can at the same time acknowledge that at least under the current regime, a downside of private waste collection is that it becomes less efficient to link to the sustainable waste management practices and procurement systems already employed by Council. It is appropriate to seek to ensure operational practices (and associated consent conditions) reasonably respond to PDCP ambitions.
3. There is also a clear public interest in less impactful and more sustainable waste management. If this Council is seeking to achieve more sustainable waste management in its LGA, including via PDCP provisions, it seems to me to be reasonable, generally, to provide that private waste services, employed because of particular site constraint, and at odds with PDCP requirements, do not unreasonably prejudice Council's ambitions for its LGA. At the same time, this consideration of "reasonableness" does need to factor in the practical problems of a smaller scale operation, such as this boarding house, not having the scale benefits of Council.

Dealing with the individual questions relating to waste management

1. Below I work through what I see to be the key questions relating to appropriate waste management related conditions.

Possibility of applicant withdrawing on-site waste management services (reference [17])

1. I am satisfied that proposed Condition 7's provisions relating to creation of a positive covenant on title for the ongoing waste collection of the boarding house development on site, reasonably addresses this concern. The covenant would require the operator to enter into a private contract for the collection of domestic waste generated at the boarding house development during the life span of the development or unless or until Council is able to service Station Lane residents with an SRV waste collection service.

Whether it is appropriate to establish a requirement "to achieve the waste diversion rate from landfill within the principles of the State Government Waste Avoidance and Resource Recovery Strategy of the day"

1. I have some concerns about the wording of this portion of proposed Condition 7 (reproduced at [24]). First there is a concern around the uncertainty of the control and the view that an applicant should have an understanding of what consent is being granted for. Second, and as indicated above, I am more of the view that at this point in time, society and regulators are in the mode of transition to more sustainable waste management practices, involving encouragement and facilitation. While, in time, regulation to this effect may come to pass, I was not presented with evidence of other instances where such a mandate was imposed on a development. Third, Council's policy in the "lifting the bar" section of PDCP (at [20]) indicates a requirement for ongoing commitments and the setting of "targets", which might be monitored over time. This approach (rather than a requirement to achieve this unstated waste diversion rate) seems more aligned with that discussed in my previous point. My conclusion is that what I refer to above as italicised text should be deleted from Condition 7.

Adequacy of proposed waste separation and monitoring

1. Council's proposed Condition 8(a) would have an annual report from the applicant to Council, providing: "Detailed breakdown of the source separated waste components generated by the boarding house including but not limited to Food Organics and Garden Organics, Dry Recyclables, Residual Garbage, Mattresses and Bulky Household Goods"
2. The applicant's OWMP provides for separation of general waste, recycling (as I understand it paper and bottles), limited green waste and bulky goods. I did not find a direct reference to food in the body of the OWMP. There is a requirement for monthly reports on "waste quantities/weights". Read together the OWMP would already require accounting for separate waste streams. If I set aside FOGO for the time being, this monthly reporting requirement is satisfactory and seems to me to position the applicant to respond well to proposed Condition 8(a). To this extent (setting aside FOGO for now) Condition 8(a) is not onerous and should be included.

Adequacy of system for ensuring destination of waste and recycling streams

1. Under Council's proposed Condition 8(c) the applicant's annual report to Council would also indicate the "location of the waste processing facilities employed".
2. It seems to me that the OWMP provisions already require a reporting system on the part of the waste service providers, while the words are not entirely parallel, it could reasonably be expected that the waste service providers monthly reports on equipment movement and waste quantities/weights would infer reporting on the location of waste processing facilities used by them (the "movement" destination). I do not see anything unreasonable in proposed Condition 8(c).

Food organics and green organics

1. The OWMP already provides for separate disposal of green (vegetation/maintenance) waste including with, as I interpret the OWMP, a documentation trail and capacity for audit (refer [39]). Mr Dickens advised that there is no problem with providing for FOGO bins as required (Ex 7 p 6).
2. One question for me here is whether it is reasonable to impose a requirement for a verifiable FOGO waste disposal service via a private contractor in this instance as a consent condition. I have limited evidence to assist me with this question. I understand that Council does provide such a service (RSC par 18), but am unaware of any requirements on other sectors using private waste contractors.
3. Food organic waste is an important target area for waste management. However, it is unclear to what extent such waste would be generated at this boarding house site, and what cost would be involved in this service.
4. At Appendix D of the OWMP a number of "secondary waste management provisions" are indicated, which provide drawings and some specifications for: worm farms, small compost bins and an "electric organic compost bin" (with capacity for decomposition of 4kg per day), each of which could assist in directly composting food organics.
5. In the circumstances, and noting in particular the advanced program underway at this Council, it is reasonable that the initiating consent for this development does address the question of FOGO. The OWMP already provides for accounting of green organic waste recycling and it is reasonable for these records to be provided as part of an annual report to Council along with other waste and recycling components, under Condition 8(a).
6. It seems to me reasonable that separated food organics waste should be excluded from Condition 8(a) and 8(b) and any on-commencement requirement for a separate collection and external processing. Instead a new Condition 8(c) is adopted which includes short term encouragement of take up of food organics processing, including via the "Secondary Waste Management Provisions" referenced in Appendix D of the OWMP (in terms of "encouragement" I am also aware that some councils provide kitchen caddy bins for individual occupancies, and there may be other initiatives on this Council's part which demonstrate the shared commitment responsibilities involved here).
7. But it is also reasonable to adopt, essentially, the position of the NSW Waste and Sustainable Materials Strategy 2041 (albeit for "households" rather than say "hospitality businesses") and require collection and processing of separated food waste from 1 January 2030, and associated annual reporting. My reasoning for this position includes: (1) the provisions of the NSW Waste and Sustainable Materials Strategy 2041 (p 25) seeking to halve "food waste to landfill by 2030", (2) the provisions of cl 7.4(h) of PLEP, which is concerned directly with sustainable development including in particular waste minimisation and recycling and (3) the current status of this Council as seeking to implement further FOGO implementation in line with sustainable development principles.
8. In turn, Condition 8 would read as follows: "Annually (and commencing one year from the commencement of operations), a report shall be provided to Penrith City Council incorporating but not limited to the following information: Detailed breakdown of the source separated waste components generated by the boarding house including but not limited to Garden Organics, Dry Recyclables, Residual Garbage, Mattresses and Bulky Household Goods. Location of the waste processing facilities employed. Any details on food organics waste generation and demonstration of commitment to sustainable management of food organics generated on site, including the implementation of any of the "Secondary Waste Management Provisions" indicated at Appendix D of the Operational Waste Management Plan prepared by Elephants Foot Consulting dated 21.08.24 and referenced at Condition 1 to this consent. From 1 January 2030, food organic waste must be separately collected and sustainably processed. Details shall be included in the required annual reporting, as outlined at Condition 8(a) and 8(b). A copy of all private waste contracts and receipts for private waste collection fees / payments shall be kept on the premises and made available to Council on request."

Provision for audit trail

1. The final component of Condition 8 provides for the keeping of private waste contracts and receipts for audit purposes. This would seem to me to be a reasonable requirement to prevent avoidance of the obligations upon the proposal, associated with the grant of consent.

Disputed "rent control" condition

1. Council's proposed Condition 6 is as follows: "The Development must be used to provide affordable housing, meaning that boarding rooms within the Development are to be charged an occupancy fee at a rate that is no higher than those specified in the State Environmental Planning Policy (Affordable Rental Housing) 2009, that is, no more than 30% of the household's gross income, which must be of less than 120% the gross median household income for the time being for the Greater Sydney (Greater Capital City Statistical Area) (according to the Australian Bureau of Statistics), and as set by ministerial order from time to time."
2. Council summarised its reasoning for the imposition of this condition as indicated below (RSC par 4): "The purpose of this condition is to ensure that (1) the household (the occupants of the boarding houses), and (2) the occupancy fees that they pay, are consistent with the definition of "Affordable Housing" contained in SEPP ARH (clause 6), as well as the broader aims of SEPP ARH (clause 3)."
3. Council further pointed out that the Statement of Environmental Effects (SEE) accompanying the application (Ex B) indicated that the proposal "was targeting a rent of around $300 per week". The SEE suggested this would translate into affordability for a low to moderate income group.
4. I see this question as having been directly considered in two previous judgments of the Court, where concurring findings were made in relation to the question. The most recent was Micro Nest No 1 Pty Ltd on behalf of Micro Nest Ashfield Trust v Inner West Council [2019] NSWLEC 1320, which relied on Pomering v Hawkesbury City Council [2018] NSWLEC 1146 (Pomering).
5. There are instances within SEPP ARH where standards are imposed in relation to rent controls linking up with affordable housing definitions (as per cl 6(1) of SEPP ARH and then in relation to "in-fill affordable housing" under cl 17, Pt 2, Div 1 of SEPP ARH). However, there are no such connections within Pt 2, Div 3 of SEPP ARH. That is, in relation to boarding houses. It is reasonable to consider this a direct legislative intent. I concur with the findings of O'Neill C in Pomering (at [40]-[41]) where consideration was given to a boarding house near Richmond Town Centre: "40. Boarding houses may provide short term accommodation, being a minimum of 3 months, to a range of income groups, as well as accommodation to those that fall within the definition of low and moderate income households under cl 6 of SEPP ARH. It is possible that the intention behind the policy of not limiting the eligibility of boarders in boarding houses is to encourage diversity and counteract some of the historic stigma associated with boarding houses that predate the "new generation" boarding houses under SEPP ARH. It is an aim of the policy at cl 3(f) to support local business centres by providing affordable rental housing for workers close to places of work and potential employees in the Richmond town centre should not be precluded from being accommodated in the boarding house if their income for a period exceeds the limit in cl 6 of SEPP ARH, as this would be contrary to the aims of the policy. 41. For these reasons, it is my view that the requirement in conditions 9, 13(b) and 77 to further restrict the boarding house accommodation to those that fall within the definition of very low, low or moderate household incomes in cl 6 of SEPP ARH further constrains the policy in a way that was not intended in the drafting of the policy."
6. While the SEE indicates a target market in-line with low to moderate income earners, I agree with the findings in Pomering that it is not necessarily desirable to exclude workers whose income for a period exceeds the limit in cl 6 of SEPP ARH. Proposed Condition 6 will not be included.

Lay submissions

1. Below I nominate a summary of relevant concerns raised in lay submissions, providing commentary in response, generally referencing the expert evidence.

Adequacy of Station Lane for vehicular access

1. The report of the traffic experts finds the proposal to have a low traffic generation of a maximum of six vehicles per hour at the peak, and that there is ample capacity for this level of traffic in Station Lane (Ex 3 par 1.1). I do note also proposed Condition 11, as agreed, which provides for implementation of a "shared zone" arrangement and 10km/hour speed limit, subject to approval of Transport for NSW.

Adequacy of parking

1. The provision of seven car parking spaces does not meet the deemed to satisfy requirements of SEPP ARH which would be 10 spaces. However, it sits higher than the requirement for four spaces under SEPP Housing. The planners evidence supports the provision of parking, as proposed. , (Ex 4 par 14). I also note here that the reduction of parking from 10 as originally proposed down to seven was essentially undertaken to improve communal space, amenity for those residing at the boarding house, including landscaping improvements. I am satisfied with regarding to the adequacy of parking, also noting the site's locational attributes adjacent to Penrith town centre.

Loss of native tree

1. The planning and landscape experts conferred jointly and expressed satisfaction with the overall landscape and associated "urban heat" management outcome for the site. They noted the retention of one of the existing trees and that a new canopy tree was proposed to the north of the building and three additional canopy trees along the western boundary up to around 14m in height (Ex 12 par 5).

Neighbour amenity concerns

1. Concerns were raised in regard to visual impact, loss of privacy and overshadowing. I am satisfied that the proposal provides a reasonable visual presentation to neighbours mindful of the landscape commentary above.
2. The key relationship in regard to visual privacy was that with the site's neighbour to the west. After a number of amendments, to the proposal the planning experts were satisfied with respect to this topic after certain westward-facing balconies were removed and provision was made for visual privacy screening on western facing windows (Ex 4 par 45(d)).
3. Experts have reviewed the overshadowing diagrams accompanying the application and find that "Shadow impacts are largely to stormwater Campbell and some of the landscaped areas of the building to the east" (Ex 4 par 45(c)).

Other matters

1. I am appreciative of the applicant's submission of a jurisdictional note which addresses each of the environmental planning instruments requiring consideration on the part of a consent authority and those requiring findings of satisfaction with respect to this matter. This submission also provided summary commentary in regard to how such matters have been attended to such that they are no longer, relevantly, in contention in this matter. I have given consideration to the relevant provisions and the associated commentary.
2. The points I wish to note particularly in this judgment are as follows.

• In relation to flood planning and the provisions of cl 5.21 of PLEP, I note the filing of a further flood modelling report by the applicant on 9 October 2024 and the Council's advice of 18 October 2024, that having reviewed this report it is now satisfied that that the proposed development now satisfactorily addresses the applicable flood controls. In turn I find that I having considered the matters at cl 5.21(3), I am satisfied with respect to the matters listed at cl 5.21(2) of PLEP.
• In regard to the "urban heat" considerations at cl 7.30 of PLEP. I note the detailed consideration of this topic in the expert reports in particular Exs 4, 6, 8 and 12. I find I am satisfied with respect to the matters listed at cl 7.30(3) of PLEP.
• In regard to site servicing. I am also satisfied in regard to the matters at cl 7.7(2) of PLEP, relevantly, because the site is already generally serviced with water and sewer and conditions of consent require augmentation of services as necessary.
• In regard to contamination and remediation, I note that a preliminary site investigation report prepared by Benviron Group dated July 2018 was lodged with the DA and concludes that the site is suitable for residential development, which satisfies me with regard to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

1. I can further note that consent conditions are generally agreed between the parties, with the exception of Conditions 6, 7 and 8, which I have considered in detail above. The list of conditions at Annexure A adopts the findings of this judgment with respect to these three disputed conditions.

Conclusion

1. Having regard to the above evaluation, the proposal, as now amended, warrants conditional consent.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Consent is granted to development application DA20/0459 for demolition of existing structures and construction of a 3 storey boarding house with 19 boarding rooms and 1 manager's room, ground floor enclosed parking for 7 cars, tree removal, landscaping and associated site works at 1 Station Lane, Penrith, subject to the conditions at Annexure A. 3. The exhibits are returned with the exception of Exhibits A-C, E, G and 1, which are retained.

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