Chrysoglou v Canterbury Bankstown Council

[2022] NSWLEC 1655

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chrysoglou v Canterbury Bankstown Council [2022] NSWLEC 1655

Hearing dates:

Conciliation Conference 16, 17 November 2022

Date of orders:

29 November 2022

Decision date:

29 November 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA757/2021 (as amended) for the demolition of existing structures and construction of a two storey dwelling with one level of basement and installation of a pool at 81A Bayview Avenue, Earlwood subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – basement carparking – breach of the minimum lot size control - amended plans and documents – agreement between the parties – orders made.

Legislation Cited:

Canterbury Local Environmental Plan 2015 cll 4.1A, 4.6, 6.2

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

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 ss 34, 34AA

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

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827

Texts Cited:

Canterbury Bankstown Community Participation Plan Amended October 2022

Category:

Principal judgment

Parties:

Alex Chrysoglou (Applicant)
Canterbury – Bankstown Council (Respondent)

Representation:

Counsel:
C Gough, (Solicitor) (Applicant)
M Bonnano, (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Canterbury- Bankstown Council (Respondent)

File Number(s):

2022/83052

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Alex Chrysoglou, appeals pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the actual refusal of their development application by Canterbury Bankstown Council. The development application seeks consent for demolition of existing structures and construction of a new dwelling house with basement and swimming pool. The development application is proposed at 81A Bayview Avenue, Earlwood (Lot 2 DP 548405).

2. The appeal was listed for conciliation on 16 November 2022 pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference agreement was reached between the parties on the basis of amended plans and documents. Broadly the amendments included the deletion of the second level of the basement, raising the dwelling by 300mm and the addition of screening to an external stairway to address privacy. The amended plans have been lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Development Application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached following a conciliation conference. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act. I have formed this state of satisfaction for the following reasons:

1. The development application has been lodged with the consent of the owner of the land;

2. The development application was placed on public exhibition between 24 September 2021 until 7 October 2021, in accordance with the requirements of the Canterbury Bankstown Community Participation Plan. One submission was received, with concerns directed to the extent of excavation, privacy, impacts during construction and proposed encroachments into the rear setback. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. Further, I am satisfied that renotification of the amended plans was not required as the amendments were responsive to concerns raised by objectors. Notwithstanding I note that the parties advised the adjoining properties and the objector of the amended proposal prior to the filing of the agreement.

3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation the development is BASIX affected development. The development application is accompanied by the required BASIX certificate.

4. Canterbury Local Environmental Plan 2015 (LEP 2015) applies to the site. The site is zoned R2 Low Density Residential and development for the purpose of dwelling house is permissible in the zone. In determining the development application, I have given consideration to the zone objectives.

5. Pursuant to cl 4.1A of LEP 2015 the site is subject to a minimum subdivision lot size of 600m². The subject site has an area of 459.3m² and relies on the provisions of cl 4.6 of LEP 2015. The Applicant has prepared a written request seeking to vary the minimum subdivision lot size development standard. I have read the written request prepared by Think Planners dated 16 November 2022 and in accordance with cl 4.6 of LEP 2015, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the minimum subdivision lot size control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2015): Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the standard for the reasons detailed in the written request.

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2015). In particular, I am satisfied that the renewal of the existing dwelling is an environmental planning ground consistent with objects (c) and (g) of s 1.3 the EPA Act, namely: to promote the orderly and economic use and development of land and to promote good design and amenity of the built environment respectively.

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.1A of LEP 2015 and the objectives of the R2 Low Density Residential zone.

4. Pursuant to cl 4.6(5) of LEP 2015, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. I find that the states of satisfaction required by cl 4.6 of LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

6. As required by cl 6.2: Earthworks of LEP 2015 in determining the development application I have given consideration to the matters listed at subcl (3). In giving consideration to these matters, I have been informed by the Geotechnical Report which forms part of the development application and the joint report of the geotechnical engineers filed with the Court on 21 October 2022. The experts reached the following agreement in their joint report: The experts jointly concur that the reports prepared by Mr Davies in this matter [the Geotechnical Report], and the facts and opinions reported therein, are suitable for determining appropriate Conditions of Consent in relation to geotechnical issues relevant to the project. I note that the amendments to the development application since the preparation of the joint report have materially reduced the excavation. The annexed conditions require compliance with the Geotechnical Report. On this basis I am satisfied that none of the factors listed at subcl (3) warrant the refusal of the application.

5. 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.

6. 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.

7. The Court notes that Canterbury Bankstown Council as the relevant consent authority, has agreed under cl 55(1) of the EPA Regulation to the applicant amending their development application and to rely on the amended plans and documents listed below:

Plan Number	Plan Name	Dated	Revision	Prepared By
DA 100	Site + Roof Plan	17/11/22	G	Aleksandar Projects
DA 102	Basement 01	17/11/22	G	Aleksandar Projects
DA 103	Ground Floor Plan	17/11/22	G	Aleksandar Projects
DA 104	Level 01 Floor Plan	17/11/22	G	Aleksandar Projects
DA 200	Section A-A	17/11/22	G	Aleksandar Projects
DA 201	North + South Elevations	17/11/22	G	Aleksandar Projects
DA 202	West + East Elevations	17/11/22	G	Aleksandar Projects
DA 401	Schedule of External Finishes	17/11/22	G	Aleksandar Projects
DA 500	Demolition Plan	17/11/22	G	Aleksandar Projects

• Expert Geotechnical Report by Davies Geotechnical Consulting Engineers dated 28 June 2022.

• Clause 4.6 Request by Think Planners dated 16 November 2022 referred to as “the amended DA”)

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA757/2021 (as amended) for the demolition of existing structures and construction of a two-storey dwelling with one level of basement and installation of a pool at 81A Bayview Avenue, Earlwood subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

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Annexure A

Decision last updated: 29 November 2022