Ace Chester Hill Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1657

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ace Chester Hill Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1657

Hearing dates:

Conciliation conference 27 September 2024

Date of orders:

17 October 2024

Decision date:

17 October 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed the sum of $7,500 within 28 days of the date of the judgment.

(3) Development Application DA-52/2022 for the demolition of the existing structures and construction of a four-storey residential flat building, with basement and ground floor level car parking at 30-32 Wellington Road, Chester Hill is approved, subject to the conditions of consent annexed hereto and marked “Annexure A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Bankstown Local Environmental Plan 2015, cll 2.1, 2.3, 2.7, 4.3, 4.6, 5.21, 6.2

Canterbury Bankstown Local Environmental Plan 2023, cl 1.8A

Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015

Environmental Planning and Assessment Regulation 2000, cll 50, 55

State Environmental Planning Policy (Housing) 2021, Ch 4, Sch 9, ss 145, 147

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.99

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Ace Chester Hill Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/461892

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA-52/2022 (DA) by Canterbury-Bankstown Council (Council).

2. The DA, as amended, seeks consent for demolition of the existing structures and construction of a residential flat building and associated development at 30-32 Wellington Road, Chester Hill (site).

Conciliation and agreement between the parties

3. 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. The conference was held on 27 September 2024. Prior to the conference, the parties had come to 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 the course of conciliation, in accordance with agreed conditions.

Pre-requisites to the exercise of the function to grant development consent

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

5. 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, and mindful of further material provided by the parties on 8 October 2024, 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 jurisdictional statement of 26 September 2024.

Bankstown Local Environmental Plan 2015

6. The parties advise that Canterbury Bankstown Local Environmental Plan 2023 came into force on 23 June 2023. As the DA was lodged with the Respondent on 14 February 2022, cl 1.8A provides a savings and transitional provision that requires the DA to be assessed against Bankstown Local Environmental Plan 2015 (BLEP). I note the following advice from the parties with respect to relevant BLEP provisions:

1. Clause 2.1 (Land Zones) - the site is zoned R4 - High Density Residential. The proposed development is defined as 'residential flat building' which is permissible with consent in the R4 zone.

2. Clause 2.3 (Zone Objectives and Land Use Table) - The parties agree that the proposed development is consistent with the objectives for development within the respective zones in which the development is proposed to be carried out.

3. Clause 2.7 (Demolition) - The DA seeks consent for demolition of the existing structures on the site which is permissible with consent under cl 2.7.

4. Clause 4.3 (Height of Buildings) - the maximum building height permitted for the site is 13 metres. The highest point of the proposed development is 14.325 metres, being an exceedance of the BLEP control of 1.325 metres (approximately 10%). Clause 4.6 provides a pathway for the grant of consent notwithstanding the contravention, provided certain pre-requisites are met. In this regard, I can find that:

1. The written request from the applicant adequately establishes sufficient environmental planning grounds to justify the breach in the development standard by indicating the main focus of the breach is the lift overrun (located away from the building edge) and demonstrating the minimal impacts of the breach (in regard to such matters as overshadowing and visual impact).

2. The written request also adequately addresses the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. It does this by working through the objectives of cl 4.3, and demonstrating that relevant objectives are met. The essence of it is captured with the adequate demonstration of the height of the proposal’s compatibility with the character, amenity and landform of the relevant locality.

3. The written request also seeks to demonstrate the proposal’s consistency with the objectives of the R4 - High Density Residential zone. For me these arguments were convincing. On the basis of these arguments and the written requests arguments relating to the proposal’s consistency with the objectives of cl 4.3, I can find that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

4. The relevant requirements of cl 4.6 have been satisfied and in this instance, the facilitative provisions of this clause are available.

5. The parties advise that the proposal does not breach any other development standard under BLEP.

6. Clause 5.21 (Flood Planning) – the site is identified as a medium flood risk precinct and thus the provisions of cl 5.21 apply. Clause 5.21 nominates certain matters requiring consideration and other matters with respect to which a consent authority must be satisfied. The applicant has provided an Amended Flood Impact Assessment Report prepared by Civil and Stormwater Engineers dated 30 July 2024 (Flood Impact Assessment) and included at Tab 11 of the applicant’s Section 34 Agreement Bundle received on 20 September 2024 (Section 34 Agreement Bundle) in support of the DA, as amended, which directly addresses these requirements. In turn I accept that the parties have given consideration to the matters at of cl 5.21(3). In regard to cl 5.21(2), based on the advice in the Flood Impact Assessment, I am satisfied that the proposed development:

1. is compatible with the flood function and behaviour on the land as there is no noticeable change in flood behaviour on the site as a result of the development (the parties give preference to section 7.2 of the Flood Impact Assessment);

2. does not adversely affect the flood levels of neighbouring properties as the stormwater measures will assist in reducing the flood levels of downstream properties (the parties give preference to section 7.2.1 of the Flood Impact Assessment Report);

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 as there is unlikely to be an increase in the flood levels of surrounding downstream properties (the parties give preference to section 7.2.1 of the Flood Impact Assessment Report);

4. incorporates appropriate measures to manage risk to life in the event of a flood through a safe evacuation route and minimal on site inundation level (the parties give preference to section 7 of the Flood Impact Assessment Report); 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 through the provision of an On Site Detention Tank and the proper management and filtration of stormwater flows into existing council stormwater infrastructure (the parties give preference to Amended Stormwater Plans prepared by Civil and Stormwater Engineers at Tab 5 of the Section 34 Agreement Bundle)

7. Clause 6.2 (Earthworks) - noting the proposed development seeks consent for earthworks, the parties advise consideration has been given to the matters at cl 6.2(3).

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

7. Pursuant to s 4.6, a consent authority must be satisfied that appropriate consideration has been given to whether the land is contaminated, the suitability of the land to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

8. The parties advise that the site is not listed on the NSW EPA's list of notified sites, nor is it in the vicinity of any such sites. The site has had a long standing rural and or residential use with no known records of contaminating activity being conducted on the site (the parties refer to page 24 of the Statement of Environmental Effects prepared by BMA Urban at Tab 3 of the Class 1 Application filed on 22 December 2023). On this advice I am satisfied that contamination has been adequately considered and the requirements of s 4.6 have been met.

State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and related matters

9. In their jurisdictional statement, the parties advise that the DA was lodged on 14 February 2022 when the provisions of State Environmental Planning Policy No 65-Design Quality of Residential Apartment Development 2002 ("SEPP 65") would apply. On 14 December 2023, SEPP 65 was repealed. New provisions relating to the design of residential apartment development have been enacted in Chapter 4 of the Housing SEPP. The Housing SEPP contains saving and transitional provisions at Schedule 7A, clause (2A) that requires that Chapter 4, as inserted by the amending policy, applies to the proposed residential flat building development. In this respect I note that:

10. Pursuant to s 145(2) of the Housing SEPP, the development was referred to the Canterbury-Bankstown Design Review Panel on 7 August 2023 for advice.

11. In accordance with s 147 of the Housing SEPP, the consent authority has considered:

1. the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9 of SEPP Housing (the applicant has assisted by providing an updated statement addressing the design quality of the development in accordance with the design quality principles – the parties refer to Tab 5 of the Section 34 Agreement Bundle in that respect).

2. the Apartment Design Guide (the applicant has assisted by providing an updated statement addressing the consistency with the Apartment Design Guide – the parties again refer to Tab 5 of the Section 34 Agreement Bundle in that respect).

3. the advice received from the Canterbury-Bankstown Design Review Panel.

12. Further, the parties advise that cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) requires, if a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, that the application must be accompanied by a statement by a qualified designer. Clause 50(1AB) of the EPA Regulation 2000 further provides that the statement by the qualified designer must, among other things, provide an explanation that verifies how the development addresses how the design quality principles are achieved and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved. I accept that the required statement has been received as indicated above.

13. I accept the advice of the parties that the proper procedural requirements and evaluative considerations of the Housing SEPP and related matters have been undertaken in coming to their agreed decision.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

14. The parties advise that the rear boundary of the site is located within the vicinity of a railway track and excavation works within 25m of the railway corridor to a depth of at least 2m are proposed. In such instances, pursuant to cl 2.99(2)(a), the consent authority must refer the development to the rail authority. In addition under cl 2.99(3), the consent authority must not grant consent to development to which this section applies without the concurrence of the rail authority for the rail corridor to which the development application relates.

15. The parties advise that the required notification has been undertaken. The application has been reviewed by Sydney Trains who have provided concurrence subject to the imposition of conditions to be satisfied prior to works commencing and during the construction process. Pursuant to clause 2.99(2)(b)(i), and on this advice of the parties, I am be satisfied that the rail authority’s response to the notification of the development has been taken into consideration in the preparation of this agreement, including by way of inclusion of relevant conditions.

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

16. The parties have advised that the required notification was undertaken and no objecting submissions in relation to the proposal were received.

Conclusion

17. With the above findings, I am satisfied that 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.

18. 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. Subsection 34(3)(b) of The LEC Act also requires me to “set out in writing the terms of the decision”. The final orders have this effect.

Notations

19. With respect to the amendments of the DA, the Court notes that:

1. Canterbury-Bankstown Council, as the relevant consent authority, has approved, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA-52/2022 to rely upon the documents as follows:

No.	Drawing No / Rev	Drawing Title	Prepared By	Date
Architectural Plans
1.	A000/E	Cover Page/Apartment Schedule	Doroch Architects	30/08/2024
2.	A010/E	Site Plan	Doroch Architects	30/08/2024
3.	A098/E	Basement 2 Floor Plan	Doroch Architects	30/08/2024
4.	A099/E	Basement 1 Floor Plan	Doroch Architects	30/08/2024
5.	A100/E	Ground Floor Plan	Doroch Architects	30/08/2024
6.	A101/E	Level 1 Floor Plan	Doroch Architects	30/08/2024
7.	A112/E	Level 2 Floor Plan	Doroch Architects	30/08/2024
8.	A113/E	Level 3 Floor Plan	Doroch Architects	30/08/2024
9.	A121/E	Roof Plan	Doroch Architects	30/08/2024
10.	A141/E	South & West	Doroch Architects	30/08/2024
11.	A142/E	North & East	Doroch Architects	30/08/2024
12.	A151/E	Sections	Doroch Architects	30/08/2024
13.	A161/E	GFA Plans	Doroch Architects	30/08/2024
14.	A201/E	Shadow Diagrams June 21	Doroch Architects	30/08/2024
15.	A261/E	Height Plane Diagram	Doroch Architects	30/08/2024
16.	A281/E	External Perspectives	Doroch Architects	30/08/2024
Stormwater Plans
17.	000/E	Cover sheet Plan	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
18.	101/K	Stormwater concept Plan Basement Level 2 Sheet 1 of 2	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
19.	102/G	Stormwater Concept Plan Basement Level 2 Sheet 2 of 2	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
20.	102.1/F	Stormwater Concept Plan Basement Level 1	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
21.	103/O	Stormwater Concept Plan Ground Level	Civil & Stormwater Engineering Services Pty Ltd	12/09/2024
22.	103.1/G	Longitudinal Section & External Drainage Plan	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
23.	103.2/B	Sections Details	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
24.	104/J	On-site Detention Details and Calculation Sheet	Civil & Stormwater Engineering Services Pty Ltd	12/09/2024
25.	104.1/G	OSD Catchment Plan	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
26.	105/C	Sediment & Erosion Control Plan & Details	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
27.	106/G	Miscellaneous Details Sheet	Civil & Stormwater Engineering Services Pty Ltd	30/08/2024
Landscape Plan
28.	EBLA-LD-GA01/F	General Arrangement Plan	EBLA Studio	12/09/2024
29.	EBLA-LD-PP-01/F	Planting Plan	EBLA Studio	12/09/2024
30.	EBLA-LD-CS-01/F	Cross Section 1-4 Western Boundary	EBLA Studio	12/09/2024
31.	EBLA-LD-CS-02/F	Cross Section 5-7 Frontage and Eastern Boundary	EBLA Studio	12/09/2024
32.	EBLA-LD-DE01/D	Hardscape Details	EBLA Studio	30/07/2024
33.	EBLA-LD-DE02/D	Hardscape Details 02 Steps and Fencing	EBLA Studio	30/07/2024
34.	EBLA-LD-DE03/D	Softscaping Details and Notes	EBLA Studio	30/07/2024
Supporting Documents
No.	Document			Date
35.	Clause 4.6 Variation Request prepared by BMA Urban			August 2024 revised 2 Oct 2024
36.	Design Verification Report prepared by Doroch Architects			September 2024
37.	Waste Management Plan prepared by Doroch Architects			30/08/2024
38.	NatHERS Certificate prepared by WSGL Designbuild Pty Ltd			03/09/2024
39.	BASIX Certificate prepared by WSGL Designbuild Pty Ltd			03/09/2024
40.	Letter in relation to overhead cable bundling prepared by Ausgrid			04/07/2024
41.	Amended Flood Impact Assessment Report prepared by Civil and Stormwater Engineering Services Pty Ltd			30/07/2024
42.	Flood Assessment Certificate prepared by Civil and Stormwater Engineering Services Pty Ltd			30/07/2024
43.	Architectural Response Letter to Council’s SOFC prepared by Doroch Architects			17/03/2024
44.	Traffic Response Letter prepared by Varga Traffic Planning			26/03/2024
45.	Stormwater Engineering Response Letter prepared by Civil and Stormwater Engineering Services			22/03/2024

Orders

20. The Court orders that:

1. The appeal is upheld.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made in accordance with s8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed the sum of $7,500 within 28 days of the date of the judgment.

3. Development Application DA-52/2022 for the demolition of the existing structures and construction of a four-storey residential flat building, with basement and ground floor level car parking at 30-32 Wellington Road, Chester Hill is approved, subject to the conditions of consent annexed hereto and marked “Annexure A”.

P Walsh

Commissioner of the Court 

Annexure A

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Decision last updated: 17 October 2024