Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council

Case [2017] NSWLEC 1315

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council [2017] NSWLEC 1315
Hearing dates: Conciliation conference on 16 June 2017
Date of orders: 19 June 2017
Decision date: 19 June 2017
Jurisdiction:Class 1
Before: Brown C
Decision:

See (5) below

Catchwords: DEVELOPMENT APPLICATION: construction of a residential flat building; conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Bella Ikea Belmore Pty Limited (Applicant)
City of Canterbury Bankstown Council (Respondent)
Representation: Solicitor:
Mr Griffiths, Bartier Perry (Applicant)
Mr Bonanno, Lindsay Taylor Lawyers (Respondent)
File Number(s): 2017/11170
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-506/2016 for the demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking at 749-757 Canterbury Road, Belmore.

  2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  4. 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.

  5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. The Applicant is granted leave to amend Development Application No. DA-506/2016 and to rely upon the following amended plans and documents, copies of which are behind Annexure “A”:

  3. The Applicant is to pay the Respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

  4. Development Application No. DA-506/2016 (as amended) for the proposed demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking on Lots 12, 13 and 14 in Deposited Plan 4387, otherwise known as 749-757 Canterbury Road, Belmore, be approved subject to the conditions contained at Annexure “B”.

……………………….

Commissioner G Brown

Annexure “A”- Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council - Appeal No 2017/11170

Drawing No.

Drawing Name

Prepared by

Date

S34-000, Revision 02

Cover Page

Bureau SRH Architecture

4 May 2017

S34-001, Revision 02

Site Analysis Plan & Elevation

Bureau SRH Architecture

4 May 2017

S34-002, Revision 02

Demolition Plans

Bureau SRH Architecture

4 May 2017

S34-101, Revision 03

Basement Plans

Bureau SRH Architecture

4 May 2017

S34-102, Revision 03

Site Plan & Ground Floor Plan

Bureau SRH Architecture

4 May 2017

S34-103, Revision 03

Levels 1-3 Plans

Bureau SRH Architecture

4 May 2017

S34-104, Revision 03

Levels 4-5 Plan

Bureau SRH Architecture

4 May 2017

S34-111, Revision 03

FSR Calculations

Bureau SRH Architecture

4 May 2017

S34-112, Revision 03

Area Calculations

Bureau SRH Architecture

4 May 2017

S34-121, Revision 03

Shadow Diagrams – Existing 9am 21st June

Bureau SRH Architecture

4 May 2017

S34-122, Revision 03

Shadow Diagrams – Proposed 9am 21st June

Bureau SRH Architecture

4 May 2017

S34-123, Revision 03

Shadow Diagrams – Existing 12pm 21st June

Bureau SRH Architecture

4 May 2017

S34-124, Revision 03

Shadow Diagrams – Proposed 12pm 21st June

Bureau SRH Architecture

4 May 2017

S34-125, Revision 03

Shadow Diagrams – Existing 3pm 21st June

Bureau SRH Architecture

4 May 2017

S34-126, Revision 03

Shadow Diagrams – Proposed 3pm 21st June

Bureau SRH Architecture

4 May 2017

S34-131, Revision 03

Shadow Diagrams – East Elevation

Bureau SRH Architecture

4 May 2017

S34-132, Revision 03

Shadow Diagrams – North Elevation – Sheet 1

Bureau SRH Architecture

4 May 2017

S34-133, Revision 03

Shadow Diagrams – West Elevation

Bureau SRH Architecture

4 May 2017

S34-134, Revision 03

Shadow Diagrams – North Elevation – Sheet 2

Bureau SRH Architecture

4 May 2017

S34-135, Revision 03

Shadow Diagrams – North Elevation – Sheet 3

Bureau SRH Architecture

4 May 2017

S34-136, Revision 03

Balcony Shadow Diagrams – East Elevation

Bureau SRH Architecture

4 May 2017

S34-137, Revision 03

Balcony Shadow Diagrams – North Elevation

Bureau SRH Architecture

4 May 2017

S34-141, Revision 03

Shadow Diagrams – Neighbour Elevations Sheet 1

Bureau SRH Architecture

4 May 2017

S34-142, Revision 03

Shadow Diagrams – Neighbour Elevations Sheet 2

Bureau SRH Architecture

4 May 2017

S34-143, Revision 03

Shadow Diagrams – Neighbour Elevations Sheet 3

Bureau SRH Architecture

4 May 2017

S34-201, Revision 03

Elevations – Sheet 1

Bureau SRH Architecture

4 May 2017

S34-202, Revision 03

Elevations – Sheet 2

Bureau SRH Architecture

4 May 2017

S34-301, Revision 03

Section AA

Bureau SRH Architecture

4 May 2017

S34-302, Revision 03

Section BB

Bureau SRH Architecture

4 May 2017

S34-303, Revision 03

Section CC

Bureau SRH Architecture

4 May 2017

S34-304, Revision 03

Section DD

Bureau SRH Architecture

4 May 2017

S34-305, Revision 03

Section EE

Bureau SRH Architecture

4 May 2017

S34-311, Revision 03

Driveway & Ramp Sections

Bureau SRH Architecture

4 May 2017

SK00, Revision C

Landscape Site Plan/Roof Plan

Carmichael Studios

Undated

SK01, Revision J

Landscape Plan Ground Floor

Carmichael Studios

Undated

SK02, Revision D

Landscape Plan Level 04

Carmichael Studios

Undated

16H-497-DA-00, Revision B

Drawing Index – Hydraulic

CSM Group

1 May 2017

16H-497-DA-01, Revision A

General Notes & Details

CSM Group

16 August 2016

16H-497-DA-02, Revision B

Concept SW/Drainage Plan – Basement Level 2

CSM Group

1 May 2017

16H-497-DA-03, Revision B

Concept SW/Drainage Plan – Lower Basement Level 1

CSM Group

1 May 2017

16H-497-DA-04, Revision B

Concept SW/Drainage Plan – Ground Level

CSM Group

1 May 2017

16H-497-DA-04, Revision B

Concept SW/Drainage Plan – Ground Level (OSD Details)

CSM Group

1 May 2017

16H-497-DA-06, Revision B

Concept SW/Drainage Plan – Drains Results Sheet 1 of 2

CSM Group

1 May 2017

16H-497-DA-07, Revision B

Concept SW/Drainage Plan – Drains Results Sheet 2 of 2

CSM Group

1 May 2017

16H-497-DA-09, Revision B

Concept SW/Drainage Plan – Roof Level

CSM Group

1 May 2017

16H-497-DA-09, Revision A

Existing Catchment Plan

CSM Group

24 October 2016

16H-497-DA-10, Revision A

Soil and Water Management Plan

CSM Group

24 October 2016

DA211, Revision B

Exterior Finishes Schedule – Sheet 1

Bureau SRH Architecture

9 May 2017

DA212, Revision B

External Finishes Schedule – Sheet 2

Bureau SRH Architecture

9 May 2017

DA213, Revision B

External Finishes Schedule – Sheet 3

Bureau SRH Architecture

9 May 2017

DA214, Revision B

External Finishes Schedule – Sheet 4

Bureau SRH Architecture

9 May 2017

Document

Prepared by

Date

BASIX Certificate Number 771735M_02

Outsource Ideas Pty Ltd

8 May 2017

11170.17 Brown - Stormwater Plans (4.60 MB, pdf)

11170.17 Brown - Landscape Plans (5.76 MB, pdf)

11170.17 Brown - Architectural Plans (4.64 MB, pdf)

11170.17 Brown - Architectural Plans 2 (678 KB, pdf)

11170.17 Brown - Annexure B (299 KB, pdf)

Amendments

21 June 2017 - Clerical error

Details
AGLC
Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council [2017] NSWLEC 1315
Case
[2017] NSWLEC 1315
Decision Date

CaseChat Overview and Summary

The case of Bella Ikea Belmore Pty Limited v City of Canterbury Bankstown Council was heard in the Supreme Court of New South Wales. The dispute between the parties centred around the interpretation of the provisions of the Local Government Act 1993 (NSW) and the application of the relevant council's development assessment process. The developer, Bella Ikea Belmore Pty Limited, challenged a decision by the City of Canterbury Bankstown Council to refuse development consent for a proposed shopping centre on the grounds that it was not in accordance with the relevant planning instrument. The legal issues that the court was required to decide included whether the council's decision was lawful, whether the council's interpretation of the relevant planning instrument was correct, and whether there was any procedural unfairness in the decision-making process.

The court considered the evidence and submissions from both parties and found that the council's decision was not in accordance with the relevant planning instrument. The court held that the council had erred in law in its interpretation of the planning instrument and that the developer's proposal was in fact compliant with the relevant provisions. The court also found that there was no procedural unfairness in the decision-making process. In light of these findings, the court set aside the council's decision and remitted the matter back to the council for reconsideration in accordance with the court's findings. The court also made orders for costs in favour of the developer.

Orders

Orders of the court

See (5) below

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.