Allam Capital Pty Ltd v Canterbury-Bankstown Council

[2023] NSWLEC 1584

Land and Environment Court

New South Wales

Medium Neutral Citation:

Allam Capital Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1584

Hearing dates:

Conciliation conference on 18 September 2023

Date of orders:

06 October 2023

Decision date:

06 October 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development Application DA-333/2023, which seeks demolition of existing structures and Torrens title subdivision of land into two lots on Lot 383B Deposited Plan 410227, known as 14 Graf Avenue, Yagoona, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

(3) The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $2000 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.3, 2.6, 2.7, 4.1

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s 34

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

Texts Cited:

Bankstown Development Control Plan 2015

Category:

Principal judgment

Parties:

Allam Capital Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Storey & Gough
Canterbury-Bankstown Council

File Number(s):

2023/149445

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA-333/2023 by the Canterbury-Bankstown Council (hereafter the Council) which seeks demolition of existing structures and Torrens title subdivision into two lots on Lot 383B Deposited Plan 410227, also known as 14 Graf Avenue, Yagoona (hereafter together the site).

Background

2. Development Application DA-333/2023 (the DA) was lodged with Council on 22 March 2023. The original DA was notified to residents, with no submissions received. After internal review, the DA was refused by Council, with the determination made on 5 May 2023.

3. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced with a site view and then held in person.

5. The Council agreed for the Applicant to amend the subdivision plan that supports and amends the application, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and as described in their jurisdictional assessment, all relevant jurisdictional matters are addressed. The agreed position of the parties is for the Court to grant consent to the amended Development Application DA-333/2023, with conditions, as described in Annexure A.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA-333/2023, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically assessed and are addressed:

1. Bankstown Local Environmental Plan 2015 (BLEP):

1. Pursuant to cl 2.3 of the BLEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the R2 zone.

2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the BLEP, including relevantly cll 2.6 (subdivision), 2.7 (demolition) and 4.1 (minimum lot size).

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The contamination status of the site must be considered, prior to the grant of consent. The Council has assessed that the site is suitable for residential use, based on its historic use and documents that support the DA, which together, with the agreed conditions of consent, address the requirements of s 4.6 of the SEPP Resilience.

3. Bankstown Development Control Plan 2015 (BDCP):

1. The original DA was publicly notified in accordance with the BDCP, with no submissions received.

2. The relevant requirements of the BDCP are generally complied with, based on the merit assessment of Council.

9. Pursuant to s 23 of the EPA Reg, the Applicant has satisfied the Court with the provision of consent from all landowners relevant to the amended DA.

Grant of consent

10. In consideration of the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. The Council has undertaken the appropriate merit assessment of the proposed subdivision and works. The Court is advised that the issues raised in the contentions have been addressed by the amendments made and supporting documents to the application.

12. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-333/2023 should be granted consent, as it addresses the relevant requirements of the EPA Act.

13. 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.

14. The Court notes that:

1. Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-333/2023, as follows:

1. Proposed Subdivision Plan 02 Revision H by Campbell Hill Group dated    19 September 2023

2. Amendments to the DA were filed with the Court on 25 September 2023.

15. The Court orders that:

1. The appeal is upheld.

2. Development Application DA-333/2023, which seeks demolition of existing structures and Torrens title subdivision of land into two lots on Lot 383B Deposited Plan 410227, known as 14 Graf Avenue, Yagoona, is determined by the grant of consent, subject to the conditions of consent contained at Annexure A.

3. The Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $2000 as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Sarah Bish

Commissioner of the Court

149445.23 Annexure A

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Decision last updated: 06 October 2023