Tarakjian v Penrith City Council

Land and Environment Court (NSW)|2024-09-02

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to ss 8.7 and 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination of Development Application DA23/1104 (the DA) by Penrith City Council (Council). The appeal was originally lodged on the basis of deemed refusal but the application has subsequently been formally refused the grant of consent by the Penrith Local Planning Panel (Panel) on behalf of the Council. Council, subject to the control and direction of the Panel, is the respondent in the appeal in accordance with s 8.15(4) of the EPA Act.
The DA, as amended, seeks consent for the demolition of existing structures and construction of a two storey "co-living development" with 23 rooms, and associated development at Lot 1 in Deposited Plan 784240, having the street address of 36 First Street, Kingswood (the site).

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. On 24 October 2024, the parties filed an 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 consent to the DA, as amended, in accordance with agreed conditions.

Jurisdiction

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 point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]).
Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed statement of jurisdictional prerequisites (originally forwarded to the Court on 24 October 2024 and revised on 29 October 2024).

Penrith Local Environmental Plan 2010

The parties advise that the site is zoned R3 Medium Density Residential under the applicable Penrith Local Environmental Plan 2010 (PLEP). While co-living housing is not nominated as development which is permissible with consent in the R3 Zone, according to the agreed advice of the parties, the DA relies on s 67(b) of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) which provides that co-living development may be carried out with consent on land in a zone in which development for the purposes of "residential flat buildings" or "shop top housing" is permitted in another environmental planning instrument. I note that shop top housing is permissible in the R3 zone under PLEP and accept the advice of the parties that, as such, the proposed co-living development is permissible with consent. Demolition works are permissible with consent under cl 2.7 of the PLEP.
The parties have indicated their agreed opinion that the proposal is consistent with the objectives of the R3 zone. The jurisdictional requirement under clause 2.3 (2) is that "regard" has been had to the zone objectives in the determination of the proposal and it is clear to me that this has occurred.
I accept the advice of the parties that the proposal complies with relevant development standards under PLEP.
Clause 5.21 relates to flood planning and is applicable as a portion of the site is identified as being subject to flood planning level (being the 1% annual exceedance probability local overland flow). Clause 5.21 introduces matters for consideration and matters for a consent authority to be satisfied with relating to flood planning. The parties indicate that there has been the required consideration of the matters at cl 5.21(3) and in their jurisdictional statement the parties work through each of the matters at cl 5.21(2) (a)-(e) demonstrating why in this instance a consent authority can be satisfied in regard to each of the matters itemised. I accept this advice from the parties and find positively that I am satisfied that the development: 1. is compatible with the flood function and behaviour on the land, and 2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and 3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and 4. incorporates appropriate measures to manage risk to life in the event of a flood, and 5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
Clause 7.1 (in relation to earthworks) applies to the site and nominates a number of matters as considerations. Whilst this clause does not require a jurisdictional finding, I note the parties advise that the relevant considerations have been taken into account.
Clause 7.4 (in relation to sustainable development) applies and requires the consent authority to have regard to the outlined principles of sustainable development based on a "whole of building" approach. While no jurisdictional test is involved, I note the advice of the parties that the DA incorporates design elements to support the principles of sustainable design.
Clause 7.7 (in relation to servicing) applies to the site. I accept the advice of the parties that the proposed development would be connected to all essential services with appropriate conditions incorporated in Annexure A. In turn I am satisfied that: 1. the development will be connected to a reticulated water supply, and 2. the development will have adequate facilities for the removal and disposal of sewage, and 3. the need for public amenities or public services has been or will be met.
Clause 7.30 (in relation to urban heat) applies to the site and requires that before granting development consent, the consent authority is to be satisfied that planning and design measures are incorporated to reduce the urban heat island effect outlined in that clause. The parties' jurisdictional statement works through each matter in turn indicating how the proposal responds. Council indicates it is satisfied that planning and design measures have been incorporated to reduce the urban heat island effect consistent with cl 7.30(3). I accept this advice and am also satisfied on that front.
I note that the parties indicate due regard has been had to these matters with dwelling designs amended to promote natural cross ventilation and the proposed windows are generally operable with the number of fixed windows to be limited. The proposed material schedule has also been amended such that the colour of finishes has been lightened slightly to minimise heat impacts. I accept the view of the parties that the proposed landscaping, forming part of the amended DA, directly aims to maximise green infrastructure and retain water in the landscape. Pergolas have also been used to better effect shading.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

Part 3 of Chapter 3 (co-living housing) applies. Section 69(1) outlines the development standards for co-living housing. The parties advise that the DA, as amended, complies with each.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

Chapter 4 (Remediation of Land) applies with s 4.6 providing that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated or potentially contaminated land, and, if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.
The parties advise that the site has a historical residential use with no known prior land uses and is located within an established residential locality. Nonetheless, a Detailed Site Investigation (DSI) has been prepared which revealed some contaminants were found at the site. A Remediation Action Plan (RAP) was subsequently prepared which provides a strategy for the remediation and management of identified contaminants. The agreed consent conditions take up the recommendations of the DSI, including the requirement for a hazardous materials survey for the site prior to any demolition works and an unexpected finds protocol, and implementation of the RAP. On this basis I am satisfied that the site can be made suitable for its proposed use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

Chapter 6 applies to the proposed development as the site is located within the Hawkesbury-Nepean Catchment. There are a range of matters identified for consideration and a number of areas where positive findings of satisfaction are required.
The first provisions of relevance relate to water quality and quantity. The parties advise of the consideration of each of the provisions of s 6.6(1) and indicate their satisfaction in respect to the two queries at s 6.6(2). The only finding of satisfaction required of the Court here is in respect to s 6.6(2). The parties assist here in indicating their agreed direct finding of satisfaction in respect of both of these matters. I can accept the advice of the parties and I am satisfied in respect of each of the two matters at s 6.6(2).
Section 6.7 relates to potential aquatic ecology impacts. Again the parties advise of the consideration of each of the matters at s 6.7(1). The only finding of satisfaction required of the Court here is in respect to s 6.7(2). The advice of the parties confirms Council's satisfaction with regard to the relevant matters. I accept this advice and in this instance can make a finding of satisfaction with respect to the matters at s 6.7(2), as relevant.
Section 6.8 relates to flooding. The parties advise that the required matters have been considered under s 6.8(1) and that Council is satisfied with respect to the two matters at s 6.8(2). I accept this advice and in this instance can make a finding of satisfaction with respect to s 6.8(2).
Similarly in relation to s 6.9 and the topic of recreation and public access, I am satisfied in relation to the matters listed at s 6.9(2) based on the advice of the parties that the development does not impact recreation and public access, relevantly.
The parties advise that s 6.10 is not triggered because there is no adjacent or downstream local government area on which the development is likely to have an adverse environmental impact.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

The parties have advised me that 17 objecting submissions were made following notification of the DA. They have indicated the substance of the submissions and that issues raised by objectors, where appropriate, have been adequately addressed in the amendments to the DA and agreed conditions. It is apparent that regard has been had to these submissions which is the extent, if any, of the jurisdictional test.

Conclusion

With the above findings, I am satisfied that the jurisdictional prerequisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Notations

With respect to the amendments of the DA, the Court notes that: 1. The Respondent, as the relevant consent authority approves, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending development application No. DA23/1104 to rely upon the following amended documents (Amended Development Application), as filed with the Court: Drawing No and Revision Title Prepared by Date Architectural Plans 1 Drawing No. A000 Issue D Cover Page Janssen Designs 27 September 2024 Drawing No. A001 Issue D Cover Page 27 September 2024 Drawing No. A002 Issue D Site Context Plan 27 September 2024 Drawing No. A003 Issue D Demolition Plan 27 September 2024 Drawing No. A005 Issue D Site Plan 27 September 2024 Drawing No. A006 Issue D Site Analysis Plan 27 September 2024 Drawing No. A007 Issue D Ground Floor Plan 27 September 2024 Drawing No. A008 Issue D First Floor Plan 27 September 2024 Drawing No. A009 Issue D Roof Plan 27 September 2024 Drawing No. A010 Issue D West Elevation, Streetscape and Section 27 September 2024 Drawing No. A011 Issue D South, East & North Elevations 27 September 2024 Drawing No. A015 Issue D Landscaped Area Calculation Diagram - Excluding Drainage Easement Land 27 September 2024 Drawing No. A016 Issue D Shadow Diagram - 9am 21st June 27 September 2024 Drawing No. A017 Issue D Shadow Diagram - 12noon 21st June 27 September 2024 Drawing No. A018 Issue D Shadow Diagram - 3pm 21st June 27 September 2024 Drawing No. A019 Issue D Colour and Finishes Schedule 27 September 2024 Landscape Plans 2 Dwg No: DA-L101 Revision D Landscape General Arrangement Plan: Ground Floor Canvas Landscape Architects 26 September 2024 Dwg No: DA-L102 Revision D Landscape Plan: Ground Floor + First Floor - east 26 September 2024 Dwg No: DA-L103 Revision D Landscape Plan: Ground Floor - west 26 September 2024 Dwg No: DA-L104 Revision D Landscape typical details, plant schedule & maintenance program 26 September 2024 Engineering Plans 3 Sheet No: SW01 Issue F Cover Page Vanguard Consulting Engineers 26 September 2024 Sheet No: SW02 Issue F Specifications Sheet 26 September 2024 Sheet No: SW03 Issue F Stormwater Plans Ground Floor 26 September 2024 Sheet No: SW04 Issue F Stormwater Plans Roof 26 September 2024 Sheet No: SW05 Issue F Stormwater Plans Catchment Plan 26 September 2024 Sheet No: SW10 Issue F Stormwater Details 26 September 2024 Sheet No: SW11 Issue F Stormwater Details Music Results 26 September 2024 Sheet No: SW20 Issue F Drainage Long Section 26 September 2024 Sheet No: SW30 Issue F Floor Fence Location Plan & Details 26 September 2024 Documents 4 Supplementary Traffic Advice of Co-Living Housing Letter McLaren Traffic Engineering 13 September 2024 5 Acoustic Assessment Report Acoustic Dynamics 17 September 2024 6 Flood Risk Management Report (Rev C) Vanguard Consulting Engineers 17 September 2024 7 Detailed Site Investigation (Revision 2) K2 Consulting Group 5 July 2024 8 Remediation Action Plan K2 Consulting Group 8 July 2024 9 Plan of Management (Version 3) Think Planners 17 September 2024

Orders

The Court orders that: 1. The Applicant is granted leave to file the Amended Development Application with the Court. 2. The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 3. The Appeal is upheld. 4. Development Application No. DA23/1104, as amended, for the demolition of existing structures and construction of a two storey co-living housing development containing 23 x rooms (8 x single and 15 double rooms) and associated works, on land legally described as Lot 1 in DP784240 and known as 36 First Street, Kingswood NSW, is determined by the grant of development consent subject to the conditions at 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: 07 November 2024

(2023) 111 NSWLR 634

At a glance

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Judgment (12 paragraphs)

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Cases Cited (2)