Aslan Investments Pty Ltd v Canterbury-Bankstown Council

[2019] NSWLEC 1042

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aslan Investments Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1042
Hearing dates:	Conciliation conference on 6 December 2018
Date of orders:	07 February 2019
Decision date:	07 February 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION: residential flat building comprising 20 apartments over basement car parking pursuant to Division 1 of State Environmental Planning Policy (Affordable Rental Housing) 2009; conciliation conference; agreement between the parties; orders
Legislation Cited:	Canterbury Local Environmental Plan 2012 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55– Remediation of Land
Category:	Principal judgment
Parties:	Aslan Investments Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant)   Solicitors: Conomos Legal (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/342581
Publication restriction:	No

Judgment

1. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act1979 (the EPA Act). It has been lodged by Aslan Investments Pty Ltd in response to the Council’s refusal of its development application (DA 222/2017) for the demolition of existing structures and construction of a three storey residential flat building comprising 20 apartments over basement car parking for 23 vehicles on land located at 144 – 148 Evaline Street Campsie.

2. At the request of the parties, 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 6 December 2018. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 this case, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. As such, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. These jurisdictional matters have been identified and addressed by the parties and based on the evidence I am satisfied with respect to the following matters :

1. All requisite land owners’ consents for the development have been lodged with the application.

2. The land to which the development application relates is within Zone R4 High Density Residential under the provisions of Canterbury Local Environmental Plan 2012 ("CLEP 2012"); and, development for the purpose of a residential flat building is permitted with consent in the Land Use Table relating to that zone at the end of Part 2 of CLEP 2012.

3. The services referred to in cl 6.6 of CLEP 2012 that are essential for the development are available or that adequate arrangements have been made to make them available when required.

4. The development does not contravene any development standard in CLEP 2012 or any other applicable environmental planning instrument.

5. The development is within an "accessible area" as defined in cl 4 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and the percentage of the gross floor area of the development that is to be used for the purpose of affordable housing is at least 20 per cent. In accordance with cl 17 of SEPP ARH, the agreed conditions of consent include a condition to the effect that:

1. for 10 years from the date of the issue of the occupation certificate:

1. the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and

2. all accommodation that is used for affordable housing will be managed by a registered community housing provider, and

2. a restriction will be registered before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with s 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.

6. The development application was accompanied by a statement by a qualified designer as referred to in cl 50 of the Environmental Planning and Assessment Regulation 2000.

7. The development application was accompanied by a BASIX certificate.

8. In relation to cl 7 of State Environmental Planning Policy No 55- Remediation of Land, the land on which the development is proposed to be carried out is not known to be contaminated and is not:

1. land that is within an investigation area, or

2. land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out.

5. Accordingly, as all jurisdictional matters have been addressed, 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.

6. 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.

7. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application No. 222/2017, for the demolition of existing structures and construction of a three (3) storey residential flat building comprising twenty (20) apartments (16 x 2 bedroom and 4 x 1 bedroom apartments) over basement car parking for 23 vehicles at 144-148 Evaline Street, Campsie subject to the conditions of consent annexed hereto and marked “A”.

……………………………….

S Dixon

Senior Commissioner of the Court

Annexure A

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Decision last updated: 07 February 2019