Antara Punchbowl Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1237

Land and Environment Court

New South Wales

Medium Neutral Citation:

Antara Punchbowl Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1237

Hearing dates:

Conciliation Conferences on 12 February 2024, 8 and 20 March 2024 and 3 and 8 April 2024

Date of orders:

07 May 2024

Decision date:

07 May 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants jointly and severally are to pay the costs of the Respondent consent authority that have been thrown away as a result of the amendment of the development application, in the amount of $5,000, such amount to be paid within 14 days of the date of this order.

(2) The appeal is upheld.

(3) The request pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 to vary the development standard for height of buildings contained within cl 4.3 thereof, as prepared by Boston Blyth Fleming dated 15 March 2024, is upheld.

(4) Development consent is granted to development application No. DA-476/2022 as amended, for the demolition of the existing site structures and the construction of a mixed-use development across 3 towers comprising a total of 58 residential apartments and 2 ground floor commercial tenancies, with basement carparking for 88 vehicles accessed via a right of way over 17 Weyland Street Punchbowl, for Lot 54 in Deposited Plan 12280 and Lot 2 in Deposited Plan 589284, known as 1570-1580 Canterbury Road and Lot 1 DP1211201 known as 17 Weyland Street Punchbowl NSW 2196, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – cl 4.6 variation – orders

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Canterbury Local Environmental Plan 2012, cll 2.1, 2.2, 2.5, 2.7, 4.3, 4.6, 5.10, 6.1, 6.2, 6.4, and 6.6

Canterbury Bankstown Local Environmental Plan 2023, cl 1.8A

Environmental Planning and Assessment Regulation 2021, ss 29 and 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Ch 11 (repealed)

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1 and 4.2(1)(a).

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Part 2.3, ss 2.118, 2.119, 2.120, 2.122 and 2.48

State Environmental Planning Policy No. 65 (Design Quality of Residential Apartment Development), cl 30(2)

Texts Cited:

Canterbury-Bankstown Community Participation Plan 2019

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

Antara Punchbowl Pty Ltd (First Applicant)
Investworx Punchbowl Pty Ltd (Second Applicant)
Moxon Projects Pty Ltd (Third Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicants)
M Bonnano (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicants)
Canterbury-Bankstown Council (Respondent)

File Number(s):

23/237787

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Canterbury-Bankstown Council of development application DA-476/2022 (the DA) for the demolition of existing site structures and the construction of a mixed-use development across   s three towers comprising a total of 58 residential apartments and 2 ground floor commercial tenancies, with basement carparking for 88 vehicles accessed via a right of way over 17 Weyland Street, Punchbowl on Lot 53 DP 12280 and Lot 2 DP 589284, otherwise known as 1570-1580 Canterbury Road, Punchbowl, 2196 (the site).

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 12 February 2024. I presided over the conciliation conference, which commenced with a site inspection. No objectors attended the onsite view.

3. The s 34 conciliation conference was adjourned to 8 March 2024 to allow time for amended plans to be prepared by the Applicants and assessed by the Respondent, and subsequently further adjourned to 20 March 2024 and 3 and 8 April 2024 to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

4. After the conciliation conferences the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. The parties advise that a number of changes have been made in the amended DA to enhance the design of the proposed development, which however retains the same overall number of residential units (58), basement car spaces (88), ground floor commercial tenancies (2), and a cl 4.6 variation for the exceedance of the building height standard by the proposed buildings A, B and C. The amended DA description also includes the access to the basement car parking on the site to be “via a right of way over 17 Weyland Street, Punchbowl”.

6. An updated cl 4.6 variation report prepared by Boston Blyth Fleming Town Planners dated 15 March 2024 was provided by the Applicant to support the proposed cl 4.6 variation of the height of buildings as stipulated at cl 4.3 of the Canterbury Local Environmental Plan 2012 (the LEP). A SEPP Design and Verification statement prepared by CDARCHITECTS dated 27 March 2024 was submitted by the Applicants. A structural report prepared by LMW Design Group Pty Ltd dated 12 January 2024 relating to the creation of a right of access through the building at 17 Weyland Street Punchbowl was also submitted by the Applicants.

7. A signed s 34 agreement with Annexure ‘A’ was filed with the Court on 8 April 2024, with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites. A supplementary jurisdictional note was filed by the parties on 22 April 2024.

8. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

Environmental Planning and Assessment Act 1979

Owner’s consent

11. The parties advise that the DA was made with the written consent of the owner of the site. The original Development Application form refers to Lot 54 DP12280 and Lot 2 DP589284, which together comprise the site at 1570-1580 Canterbury Road, Punchbowl. Adjacent land at 17 Weyland Street, Punchbowl which is proposed for access to basement carparking on the site was not included in the original description of the site.

12. It is noted that the land at 17 Weyland Street Punchbowl contains a relatively recent residential apartment building of six storeys with underground basement car parking. The original DA and the amended DA both propose access to the basement carparking on the site via the basement carpark of 17 Weyland Street. The land at 17 Weyland Street Punchbowl is now included in the description of the development in the amended DA.

13. As part of the s 34 documentation, the parties submitted a document signed by the registered proprietor of 17 Weyland Street Punchbowl which provides consent for the lodgement of the DA; and further consenting to the works in the amended DA which would require partial demolition of the existing western wall of the basement level at 17 Weyland Street Punchbowl to provide access to the proposed development on the site. The amended architectural plan (drawing number DA 1102 Rev H) for Basement Level 01 includes a note “Punch out wall in B1 at 17-19 Weyland Street to provide access to B1 at subject development” and shows the proposed right of way on an internal accessway of the basement of the building on 17-19 Weyland Street.

Community Participation (Sch 1, Div 2, s 7(1) of the EPA Act)

14. The DA (which included vehicular access through 17 Weyland Street) was notified by the Respondent in accordance with the Canterbury-Bankstown Community Participation Plan 2019 for a period of 21 days, between 20 July 2022 and 10 August 2022 and re-advertised for a further 21 days form 17 May 2023 to 7 June 2023. Two unique submissions were received collectively in response to the first two notifications. The Respondent did not require the amended DA to be re-notified.

Conditions

15. The s 34 agreement includes the imposition of conditions which are imposed under s 4.17(1) of the EPA Act.

Canterbury Local Environmental Plan 2012

16. The LEP applies to the site and to the proposed development. Under the LEP provisions:

1. The site is zoned B5 Business Development zone pursuant to cl 2.2 of the LEP and is also listed in Schedule 1 identified within Area ‘A’ on the Key Sites Map and is subject to provisions of cl 2.5 (Additional permitted uses for particular land); and

1. The commercial component of the proposed development is permitted with consent within the B5 zone; and

2. The residential component of the proposed development is permissible pursuant to cl 2.5 of the LEP, which provides that residential development is permitted with consent if the development is part of a mixed use development; and

3. The parties advise that the proposed development is compatible with the objectives of the B5 zone at cl 2.3 of the LEP. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out.

2. Pursuant to cl 2.7 of the LEP, demolition is permissible with consent.

3. Pursuant to cl 4.3 of the LEP, the maximum height of buildings on the site is 18 metres. The parties advise that the amended DA provides a maximum height variation of between 0.52 metres to 4 metres at various points across the three buildings proposed on the site; and

1. The Applicants submitted a cl 4.6 written request for the amended DA prepared by Boston Blyth Fleming Town Planners dated 15 March 2024. The parties have advised that the Court can be satisfied that compliance with the height development standard in cl 4.3 of the LEP is unreasonable or unnecessary in the circumstances of the case; that there are sufficient environmental planning grounds to justify contravening the development standard; and that the proposed development is in the public interest because it achieves the objectives of the B5 Business Development zone in the LEP; and

2. I am satisfied that the Applicants’ amended cl 4.6 written request is well founded and that the variation to the maximum height development (HoB) standard is acceptable noting that the provisions of cl 4.3(2) of the LEP provide a maximum height of buildings of 18 metres for development on the subject site. The amended DA proposes a maximum building height of up to 22 metres, breaching the height development standard by up to 4 metres at some points. The design response reflects the proposed building being responsive to the height of existing buildings surrounding the site, and provides for a consistency of built form along the Canterbury Road and Weyland Street streetscape;

3. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of the LEP (noting this refers to the version of cl 4.6 in force in the LEP at the time the DA was lodged), because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the Applicants’ written request, which I adopt;

4. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of LEP, for the following reasons:

1. Continuation of the five and six storey built form across the site will ensure a consistency of built form within the emerging streetscape of Canterbury Road and Weyland Street in the vicinity of the site, where recently constructed buildings have also utilised variations to the building height development standard; and

2. The extent of the height breach is amplified as a consequence of applicable flood levels on part of the site (up to 2.82 metres above existing ground level along the western boundary) where the maximum height breach occurs.

4. Approval of the proposed development will be in the public interest for the reasons provided above (at [(3)]), and because the proposed development is consistent with the objectives for the HoB development standard and for development within the B5 Business Development zoning of the subject site, for the reasons provided within the Applicant’s written request, which I also adopt.

5. The parties advise that there is no floor space ratio development standard applying to the site pursuant to cl 4.4 of the LEP.

6. Pursuant to cl 5.10 of the LEP, the parties advise that the site is not listed as a heritage item and is not within a heritage conservation area.

7. Pursuant to cl 6.1 of the LEP, the parties advise that the site is identified as being within the Class 5 Acid Sulfate Soils area. The DA is supported by an Acid Sulfate Soil Assessment prepared by EI Australia dated 13 February 2023, and that the Court can be satisfied that this clause is satisfied.

8. Clause 6.2 of the LEP sets out the matters that the consent authority is required to consider before granted development consent for earthworks. The consent authority must be satisfied that the proposed earthworks will not result in adverse impacts to the soil and vegetation on the Site and adjoining properties; and

1. The parties advise that the extent of the proposed excavation including setbacks is detailed in the architectural plans in the amended DA and that the Court can be satisfied that this clause is satisfied;

9. Clause 6.4 of the LEP relates to stormwater management. The parties advise that the amended DA is supported by stormwater management plans which provide for the collection and disposal of stormwater, with both on-site detention and retention/re-use of collected stormwater.

10. Clause 6.6 of the LEP relates to essential services. The parties advise that essential services for water supply, electricity, sewerage, stormwater drainage and vehicular access are available to the site and that the Court can be satisfied that this clause is satisfied.

Canterbury-Bankstown Local Environmental Plan 2023

17. The parties advise that the Canterbury-Bankstown Local Environmental Plan 2023 came into force on 23 June 2023 and included at cl 1.8A, a savings provision for development applications that had been lodged before the commencement of this plan and not finally determined before that commencement. Accordingly, the amended DA must be determined as if this local environmental plan had not commenced.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

18. The parties advise that the site is located within the Georges River Catchment area and is mapped by Council as being susceptible to the probable maximum flood event and is identified in an environmental planning instrument as flood liable land.

19. As the DA was lodged on 5 July 2022, the now repealed Chapter 11 (Georges Rivers) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the proposed development through the savings provisions contained at s 6.65 of the Biodiversity SEPP. Under the repealed s 11.5 (a), the planning principles contained in Chapter 11 apply when a consent authority determines a development application. There are general principles at s 11.6 and specific planning principles at ss 11.7(3) and 11.7(9) to be applied to the amended DA. The Planning Requirements for the proposed development are set out in the Planning Control Table at s 11.8 (Item 20 – Stormwater Management System or Works).

20. The parties advise, and I agree, that the Court can be satisfied that the relevant considerations of Chapter 11 are addressed, and in particular:

1. In accordance with the general principles at s 11.6 of the Biodiversity SEPP the parties have considered and agreed that the proposed development achieves the aims and objectives of Chapter 11; and

2. Further consideration has been given to the relevant matters in s 11.7 in relation to acid sulphate soils and stormwater management. The site is identified as being within Class 5 Acid Sulfate Soils area. The Development Application is supported by an Acid Sulfate Soil Assessment prepared by EI Australia dated 13 February 2023. The Development Application, as amended, is supported by Stormwater management plans which provide for the collection and disposal of stormwater, with both on-site detention and retention/re-use of collected stormwater.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

21. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004) continues to apply to the DA by operation of ss 4.1 and 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

22. In relation to the provisions of the BASIX SEPP 2004, the Applicant’s amended DA is accompanied by an updated BASIX certificate 1257339M_03 dated 5 April 2024 prepared by Ecoplus Consultants Pty Ltd which is consistent with the amended DA.

State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development

23. Clause 30(2) of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) requires that development consent must not be granted if the proposed development does not demonstrate that adequate regard has been given to the design quality principles. Section 29 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) requires that development applications which relate to residential apartments must be accompanied by a statement by a suitably qualified designer; and

1. The amended DA is supported by a Design Verification Statement prepared by Registered Architect Liljana Ermilova (Registration No. 7887) dated 27 March 2024; and

2. The amended DA is supported by an NSW Planning and Environment Apartment Design Guide compliance table included at Annexure ‘2’ of the Statement of Environmental Effects lodged with the application.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use; and

1. The parties advise that the land has been used for vehicle repair purposes;

2. The DA is supported by a Stage 2 Contamination Assessment prepared by Ground Technologies Pty Ltd, dated 8 June 2017; Acid Sulfate Soil Assessment prepared by EI Australia dated 13 February 2023; Detailed Site Investigation Report prepared by EI Australia dated 13 February 2023; and Remedial Action Plan (RAP) prepared by EI Australia dated 19 May 2023;

1. The parties submit that the RAP concludes that the site can be made suitable for the proposed residential land use through the implementation of the site remediation and validation process described in the RAP; and

2. The Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

25. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the amended DA. The site has frontage to a classified road (Canterbury Road), and therefore Part 2.3 (which relates to development controls for development in or adjacent to road corridors or road reservations), and ss 2.118, 2.119, 2.120 and 2.122 of the Transport and Infrastructure SEPP apply to the proposed development. The parties submitted that the amended DA meets the requirements of the Transport and Infrastructure SEPP as follows:

1. Vehicular access is gained via Weyland Street, as opposed to Canterbury Road;

2. The safety, efficiency and ongoing operation of Canterbury Road will not be adversely impacted as access to the site and all servicing of the site is to be from Weyland Street;

3. The development has been designed to mitigate traffic noise for future occupants of the development;

4. There is compliance with s 2.120 in terms of the effects of road noise or vibration as detailed in the Acoustic Report prepared by Acoustic Noise & Vibration Solutions Pty Ltd dated 14 December 2021.

26. Section 2.48 of the Transport and Infrastructure SEPP requires the consent authority to consider any development application for any development carried out within or immediately adjacent to an easement for electricity purposes; or immediately adjacent to an electricity substation; or within 5 metres of an exposed overhead electricity power line; and

1. The parties advise that the DA was notified to Ausgrid who raised no objection and issued conditions to the Respondent on 2 September 2022.

Canterbury Development Control Plan 2012

27. The Respondent advises that the amended DA has been assessed against the provisions of the Canterbury Development Control Plan 2012 (the DCP) and that it is satisfied that the amended DA is generally consistent with the applicable controls and objectives in the DCP.

Conclusion

28. Having considered the advice of the parties provided above at [15-27], I am satisfied that:

1. The Applicants’ amended DA can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied; and

3. Approval of the proposed development is in the public interest.

29. Further, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

30. 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.

31. The Court notes:

1. The description of the development application amended to read “Demolition of the existing site structures at 1570-1580 Canterbury Road and the construction of a mixed-use development across three towers comprising a total of 58 residential apartments and 2 ground floor commercial tenancies, with basement carparking for 88 vehicles accessed via a right of way over 17 Weyland Street.”

2. That Canterbury-Bankstown Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA-476/2022 made on 8 April 2024 to rely on the documents specified below:

Amended Architectural Plans
Plan Name	Drawing Ref	Revision	Date	Prepared by
Site Plan	DA1005	F	10 March 2024	CD Architects
Demolition Plan	DA1008	A	26 October 2021	CD Architects
Basement Level 2 Floor Plan	DA1101	F	10 March 2024	CD Architects
Basement Level 1 Floor Plan	DA1102	H	10 March 2024	CD Architects
Ground Floor Plan – Overall	DA1103	H	10 March 2024	CD Architects
Ground Floor Plan – Building A	DA1104	E	21 February 2024	CD Architects
Level 01 Floor Plan – Building A	DA1105	D	19 January 2024	CD Architects
Level 02 Floor Plan – Building A	DA1106	C	8 September 2023	CD Architects
Level 03 Floor Plan – Building A	DA1107	C	8 September 2023	CD Architects
Level 04 Floor Plan – Building A	DA1108	E	21 March 2024	CD Architects
Level 05 Floor Plan – Building A	DA1109	E	21 March 2024	CD Architects
Roof Level Plan– Building A	DA1110	E	19 January 2023	CD Architects
Ground Floor Plan – Building B&C	DA1111	H	10 March 2024	CD Architects
Level 01 Floor Plan – Building B&C	DA1112	F	21 March 2024	CD Architects
Level 02 Floor Plan – Building B&C,	DA1113	E	27 February 2024	CD Architects
Level 03 Floor Plan – Building B&C	DA1114	E	27 February 2024	CD Architects
Level  04 Floor Plan – Building B&C	DA1115	G	21 March 2024	CD Architects
Level 05 Floor Plan – Building B&C	DA1116	F	10 March 2024	CD Architects
Roof Level Plan – Building B&C	DA1117	D	10 March 2024	CD Architects
Roof Level Plan – Overall	DA1118	F	10 March 2024	CD Architects
North & East Elevation – Building A	DA2001	E	27 February 2024	CD Architects
South & West Elevation – Building A	DA2002	E	21 March 2024	CD Architects
South & West Elevation – Building B	DA2003	G	10 March 2024	CD Architects
North & East Elevation – Building B	DA2004	F	10 March 2024	CD Architects
North & South Elevation – Building C	DA2005	H	21 March 2024	CD Architects
Building A Section 1	DA3001	C	19 January 2024	CD Architects
Building A Section 2	DA3002	C	19 January 2024	CD Architects
Building B&C Section 1	DA3003	G	10 March 2024	CD Architects
Building B&C Section 2	DA3004	F	10 March 2024	CD Architects
Ramp Section	DA3005	B	7 December 2022	CD Architects
Pre+Post Adaptable Unit Layout	DA5001	C	19 January 2024	CD Architects
Pre+Post Adaptable Unit Layout	DA5002	D	19 January 2024	CD Architects
Pre+Post Adaptable Unit Layout	DA5003	C	19 January 2024	CD Architects
Finishes Schedule	DA7041	F	21 March 2024	CD Architects
Amended Landscape Plans
Plan Name	Drawing Ref	Revision	Date	Prepared by
Plant Schedule	001	E	22 March 2024	Site Image Landscape Architects
Landscape Masterplan	100	D	22 March 2024	Site Image Landscape Architects
Landscape Plan Building A Ground Floor	101	G	22 March 2024	Site Image Landscape Architects
Landscape Plan Building B&C Ground Floor	102	G	22 March 2024	Site Image Landscape Architects
Landscape Plan Building A Level 1-3	110	D	22 March 2024	Site Image Landscape Architects
Landscape Plan Building B&C Level 2-3	111	A	22 March 2024	Site Image Landscape Architects
Landscape Plan Building A Level 4	140	D	22 March 2024	Site Image Landscape Architects
Landscape Plan Building B&C Level 4	141	A	22 March 2024	Site Image Landscape Architects
Landscape Plan Building A Level 5	150	C	28 February 2024	Site Image Landscape Architects
Levels & Grading Plan Building A Ground Floor	301	D	22 March 2024	Site Image Landscape Architects
Levels & Grading Plan Building B&C Ground Floor	302	D	22 March 2024	Site Image Landscape Architects
Levels & Grading Plan Building A Level 1-3	310	B	28 February 2024	Site Image Landscape Architects
Levels & Grading Plan Building B&C Level 1-3	311	A	22 March 2024	Site Image Landscape Architects
Levels & Grading Plan Building A Level 4	340	B	28 February 2024	Site Image Landscape Architects
Levels  & Grading Plan Building B&C Level 4	341	A	22 March 2024	Site Image Landscape Architects
Levels & Grading Plan Building A Level 5	350	B	28 February 2024	Site Image Landscape Architects
Landscape Details	501	B	17 February 2023	Site Image Landscape Architects
Landscape Details and Maintenance Schedule	502	D	14 March 2024	Site Image Landscape Architects
Landscape Details	503	A	25 January 2024	Site Image Landscape Architects
Landscape Sections	601	C	14 March 2024	Site Image Landscape Architects
Landscape Sections	602	C	22 March 2024	Site Image Landscape Architects
Deep Soil Plan	701	E	22 March 2024	Site Image Landscape Architects

3. Remediation Action Plan prepared by EI Australia, dated 19 May 2023, reference E25904.E06_Rev0.

4. Updated clause 4.6 variation request – Height of buildings prepared by Boston Blyth Fleming Pty Limited, dated 15 March 2024.

5. Design Verification Statement prepared by CDA Architects dated 27 March 2024.

6. BASIX Certificate No. 1257339M_03, dated 5 April 2024, prepared by Ecoplus Consultants Pty Ltd.

7. Structural Report prepared by LMW Design Group Pty Ltd dated 12 January 2024.

8. Owners Consent from 17-19 Weyland Street, Punchbowl.

9. The amended DA was filed with the Court on 8 April 2024.

32. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants jointly and severally are to pay the costs of the Respondent consent authority that have been thrown away as a result of the amendment of the development application, in the amount of $5,000, such amount to be paid within 14 days of the date of this order.

2. The appeal is upheld.

3. The request pursuant to cl 4.6 of the Canterbury Local Environmental Plan 2012 to vary the development standard for height of buildings contained within cl 4.3 thereof, as prepared by Boston Blyth Fleming dated 15 March 2024, is upheld.

4. Development consent is granted to development application No. DA-476/2022 as amended, for the demolition of the existing site structures and the construction of a mixed-use development across three towers comprising a total of 58 residential apartments and 2 ground floor commercial tenancies, with basement carparking for 88 vehicles accessed via a right of way over 17 Weyland Street Punchbowl, for Lot 54 in Deposited Plan 12280 and Lot 2 in Deposited Plan 589284, known as 1570-1580 Canterbury Road and Lot 1 DP1211201 known as 17 Weyland Street Punchbowl NSW 2196, subject to the conditions of consent in Annexure A.

……………………….

G Kullen

Acting Commissioner of the Court

Annexure A

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Decision last updated: 07 May 2024