Campanella Holdings Pty Ltd v City of Canada Bay Council

[2022] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation:

Campanella Holdings Pty Ltd v City of Canada Bay Council [2022] NSWLEC 1057

Hearing dates:

Conciliation conference on 2 February 2022

Date of orders:

09 February 2022

Decision date:

09 February 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development consent is granted to Development Application No. DA2021/0083, for the Torrens Title subdivision of the land described as Lot 1 DP 214636 (known as 2 Tennyson Road, Concord) into 2 lots, subject to the conditions in Annexure A.

Catchwords:

APPEAL – residential subdivision – conciliation conference – agreement reached – orders made

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 2.3, 2.6, 4.1, 6, 6.1

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10

Environmental Planning and Assessment Regulation 2000, cll 49, 102

Land and Environment Court Act 1979, ss 34AA, 34

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Sydney Regional Environmental Planning (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Campanella Holdings Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
B Salon (Solicitor) (Applicant)
M Cottom (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2021/303935

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) by Campanella Holdings Pty Ltd (Applicant) for a two-lot residential subdivision of land in Concord.

2. The land the subject of the DA is Lot 1 DP 214636 and is known as 2 Tennyson Rd, Concord (Site). The Site is located on the northern side of Tennyson Rd and is on the corner of Tennyson Rd and Watkins St. The Site has recently been cleared and is currently vacant.

3. The DA seeks development consent for the Torrens Title subdivision of the Site into two lots (Proposed Development). Proposed Lot 1 fronts Tennyson Rd and has an area of 548 m²; proposed Lot 2 fronts Watkins St and has an area of 501 m².

4. The DA was refused by the Council on 10 August 2021 and the Applicant appeals from the Council’s decision. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

6. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 2 February 2022. I presided over the conciliation conference.

7. On 17 January 2022, prior to the conciliation conference, the parties held without prejudice discussions as the result of which they reached an “in principle” agreement which resolved the Council’s contentions. This led to the parties entering into an agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 31 January 2022 and is supported by a Jurisdictional Statement provided by the parties on the same date. The agreement, which came before me on 2 February 2022, involves the Court approving the DA, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

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

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

2. The Applicant is the owner of the Site and the DA has been made in accordance with cl 49(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

3. The Land is within Zone R2 Low Density Residential under the Canada Bay Local Environmental Plan 2013 (LEP). The subdivision of land within that zone is permitted with development consent (cl 2.6).

4. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with, the objectives of the R2 Low Density Residential zone in the LEP. One of those objectives is “to provide for the housing needs of the community within a low density residential environment” and the DA is consistent with that objective.

5. The Proposed Development complies with the applicable development standard in the LEP relating to minimum lot size (cl 4.1). The applicable minimum lot size is 450 m² and the proposed lots have areas of 583.6 m² and 500.1 m² respectively.

6. Clause 6.1 of the LEP deals with acid sulfate soils.  The Site is within a Class 5 Acid Sulfate Soils area and is in the vicinity of unclassified soil areas. The DA does not propose any earthworks and will not lower the water table of any Class 1 to 4 land. On that basis, an acid sulfate soils management plan is not required.

7. The City of Canada Bay Development Control Plan 2017 (DCP) applies to the Site and I accept the parties’ agreed submission that the Proposed Development meets the relevant controls in the DCP.

8. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation), for the purpose for which the proposed development is to be carried out. The Site has been used for residential purposes for many years. I am satisfied the Site is therefore unlikely to be contaminated and is suitable for the Proposed Development.

9. The Sydney Regional Environmental Planning (Sydney Harbour Catchment) 2005 (SREP) applies to the Site. However, the Site is not located within the foreshore and waterway area, or the wetlands protection area identified by the SREP, and the SREP therefore does not impose any jurisdictional prerequisites for the granting of development consent to the DA.

10. The Council’s Statement of Facts and Contentions indicates that the DA was publicly notified between 19 April 2021 and 10 May 2021. One submission was received by the Council during the notification period. The submission raised matters relating to the potential non-compliance of future residential development on the proposed lots with the setback controls in the DCP. The Court heard oral evidence from the objector prior to the conciliation conference who indicated that he had “no problem with the subdivision,” and merely wished to see that future residential development on the proposed lots would comply with the relevant DCP controls.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

12. The Court notes that:

1. The Council will publish notice of the granting of development consent on its website by the end of the month after the date of this judgment.

2. The Council will register the development consent on the NSW Planning Portal and notify the objector in accordance with cl 102 of the Environmental Planning and Assessment regulation 2000 within 14 days of the date of this judgment.

13. The Court orders that:

1. The Appeal is upheld.

2. Development consent is granted to Development Application No. DA2021/0083, for the Torrens Title subdivision of the land described as Lot 1 DP 214636 (known as 2 Tennyson Road, Concord) into 2 lots, subject to the conditions in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (283741, pdf)

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Decision last updated: 09 February 2022