Close Street Developments Pty Limited v Canterbury-Bankstown Council

[2019] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:	Close Street Developments Pty Limited v Canterbury-Bankstown Council [2019] NSWLEC 1491
Hearing dates:	Conciliation conference on 4 October 2019
Date of orders:	15 October 2019
Decision date:	15 October 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [10] below
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Canterbury Local Environment Plan 2012 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 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Texts Cited:	Canterbury Development Control Plan 2012
Category:	Principal judgment
Parties:	Close Street Developments Pty Limited (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: P Bean (Solicitor) (Applicant) A Kleiss (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/122550
Publication restriction:	No

Judgment

1. COMMISSIONER: Close Street Developments Pty Limited (the Applicant) has appealed the deemed refusal by Canterbury Bankstown Council (the Respondent) of its application to modify development consent DA-339/2013, for the demolition of existing structures and construction of a part six storey, part seven storey shop top housing development over basement car parking (the proposed development) at 6-8 Close Street, Canterbury (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction. These proceedings are determined pursuant to the provisions of s 4.55(2) of the of the EP&A Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 4 October 2019, and I have presided over the conciliation conference.

4. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

5. 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. The Parties’ decision involves the Court exercising the function under s 4.16 of the EP&A Act to grant consent to the development application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties identified the following jurisdictional prerequisites of relevance in these proceedings, together with their views on how these had been satisfied, as follows:

1. the development consent that the Applicant now seeks to modify, and which was issued in 2014, has physically commenced;

2. the proposed development is substantially the same development as the development for which consent was originally granted;

3. there are no conditions sought to be imposed as a requirement of a concurrence to the consent nor are there any general terms of an approval proposed to imposed as conditions of consent as part of the approval of the Applicant’s modification application;

4. the proposed development has been notified in accordance with the provisions of Canterbury Development Control Plan 2012, and no submissions were received in response to that notification;

5. the proposed development is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000;

6. the proposed development is consistent with the provisions of State Environmental Planning Policy No 55 – Remediation of Land, and State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development;

7. the parties confirmed that the minor exceedance of the height development standard in cl 4.3 of Canterbury Local Environment Plan 2012 (CLEP) to proposed by the Applicant, and required to accommodate a lift overrun, was acceptable to them under a merits assessment. Further, the Parties advised that under the provisions of s 4.55(4) of the EP&A Act, as the modification of development consent DA-339/2013 is taken not to be the granting of development consent, further consideration of the provision of cl 4.6 of CLEP is not required.

7. Having considered the advice of the Parties, provided above at [6], I agree that the jurisdictional prerequisites in relation to which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

8. I am further 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, for reasons provided at [6] and [7].

9. 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.

10. The Court orders that:

1. The Applicant is granted leave to amend Modification Application No. DA-339/2013/A pursuant to Section 4.55(2) of the EP&A Act and rely upon the following amended plans and documentation:

DRAWING NO.	DOCUMENT NAME	ISSUE	DATED	PREPARED BY
001	Photomontage	P	26/08/19	Environa Studio
101	B1 Car Park Plan 1:200	R	26/08/19	Environa Studio
102	Ground Floor Plan 1:200	R	26/08/19	Environa Studio
103	1st Floor Plan 1:200	Q	26/08/19	Environa Studio
104	2nd Floor Plan 1:200	Q	26/08/19	Environa Studio
105	3rd Floor Plan 1:200	Q	26/08/19	Environa Studio
106	4th Floor Plan 1:200	Q	26/08/19	Environa Studio
107	5th Floor Plan 1:200	Q	26/08/19	Environa Studio
108	6th Floor Plan 1:200	Q	26/08/19	Environa Studio
110	Roof Plan 1:200	P	26/08/19	Environa Studio
120	Section AA 1:200	P	26/08/19	Environa Studio
121	Section BB 1:200	Q	26/08/19	Environa Studio
122	Section CC 1:200	Q	26/08/19	Environa Studio
130	South East Elevation 1:200	Q	26/08/19	Environa Studio
131	South West Elevation 1:200	Q	26/08/19	Environa Studio
132	North West Elevation 1:200	Q	26/08/19	Environa Studio
133	North East Elevation 1:200	Q	26/08/19	Environa Studio
210	Colours and Finishes Schedule	O	15/02/19	Environa Studio
901	Perspectives Sheet 1	P	26/08/19	Environa Studio
902	Perspectives Sheet 2	P	26/08/19	Environa Studio
905	Height Plane Diagram Sheet 1	Q	26/08/19	Environa Studio
906	Height Plane Diagram Sheet 2	Q	26/08/19	Environa Studio
911	Solar Access Study – P.O.S.	P	26/08/19	Environa Studio
912	Solar Access Study – Living Room Windows	P	26/08/19	Environa Studio
920	Solar Impact Study – June 21	R	26/08/19	Environa Studio
950	Pre + Post Adaptation Plan	Q	26/08/19	Environa Studio
SW100	Cover Sheet	C	26/08/19	SGC Engineering Value
SW200	Stormwater Concept Design – Basement Plan	C	26/08/19	SGC Engineering Value
SW201	Stormwater Concept Design – Ground Floor Plan	C	26/08/19	SGC Engineering Value
SW300	Stormwater Concept Design – Details Sheet	C	26/08/19	SGC Engineering Value
SW400	Erosion and Sediment Control – Plan and Details	C	26/08/19	SGC Engineering Value
PTC-001	Access & Parking Assessment Basement 1 – Spaces 22, 23 & 24	3	26/08/19	Parking & Traffic Consultants Pty Ltd
PTC-002	Access & Parking Assessment Basement 1 – Space 1 Ground Floor – Space 4	3	26/08/19	Parking & Traffic Consultants Pty Ltd
PTC-003	Access & Parking Assessment Ground Floor – Access & Egress	3	26/08/19	Parking & Traffic Consultants Pty Ltd
DOCUMENT			DATED	PREPARED BY
BASIX Certificate No. 907879M_02			06/09/19
Traffic Assessment			26/08/19	Parking & Traffic Consultants Pty Ltd

2. The appeal is upheld.

3. Modification Application No. DA-339/2013/A (as amended) for internal alterations and additions including the provision of 10 additional units, 9 additional car parking spaces and 8 additional motorcycle parking spaces, and the reconfiguration    of the approved ground floor retail premises is approved.

4. Development Consent No. DA-339/2013, originally granted by the Respondent on 14 August 2014, for the demolition of existing structures and construction of a part 6, part 7 storey shop top housing development containing 1 ground floor retail space and 30 residential units above over basement car parking containing 30 car parking spaces on the land at 6-8 Close Street, Canterbury is modified pursuant to Section 4.55(2) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

5. As a consequence of Order (4), Development Consent No. DA-339/2013 (as modified) is subject to the consolidated, modified conditions of consent set    out in Annexure “B”.

…………………………….

M Chilcott,

Commissioner of the Court

Annexure A (154 KB)

Annexure B (187 KB)

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Decision last updated: 16 October 2019