Danawe v Canterbury-Bankstown Council

[2021] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:

Danawe v Canterbury-Bankstown Council [2021] NSWLEC 1574

Hearing dates:

Conciliation conference on 21 September 2021

Date of orders:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application Number DA 515/2018 for demolition of existing structures and construction of a three-storey boarding house containing 22 boarding rooms (including 1 manager’s room) and one basement level containing carparking with 11 car spaces and 5 motorcycles spaces on Lot 16 in Deposited Plan 4357 otherwise known as 37 Claremont Street, Campsie is approved subject to the conditions in Annexure “A” to this agreement.

(3) The Applicant is the pay the Council’s costs thrown away as a result of the amended plans in the agreed sum of $2,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – boarding house – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 6.4, 6.6.

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 30.

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

State Environmental Planning Policy No.55 – Remediation of Land

Texts Cited:

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

Malek Danawe (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Danawe Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2020/70316

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal has been brought to the Court under s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act). It arises following the actual refusal by Canterbury-Bankstown Council of development application 515/2018 for demolition of existing structures and construction of a three-storey boarding house containing 28 boarding rooms with associated basement car parking and landscape works, at 37 Claremont Street, Campsie, lot 16 DP 4357.

2. 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 21 September 2021. I presided over the conciliation conference.

3. 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 development consent to the development application subject to conditions.

4. The agreement between the parties was based on an amended application. In summary, the relevant amendments to the application included:

• Modification of the roof form;

• Increased east and north (rear) setback and deep soil provision;

• Modifications to common amenities;

• Reconfigured waste management and bicycle parking;

• Basement redesign; and

• Reduction of units from 28 to 22.

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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. From this I note the following:

6. Pursuant to the Canterbury Local Environmental Plan 2012 (CLEP), the site is zoned R4 – High Density Residential. Development for the purposes of a boarding house is permissible with consent in this zone, and I have had regard to the objectives of this zone.

7. The proposed development complies with the maximum height standard of 11.5m as per CLEP cl 4.3, with a maximum height of 10.6m.

8. The proposed development further complies with CLEP cl 4.4 Floor Space Ratio (FSR), which lists the maximum FSR for the site as 0.9:1. The proposed development meets this maximum with an FSR of 0.9:1.

9. In relation to other relevant provisions of the CLEP, based on the amended drawings and the Statement of Environmental Effects (SEE) I am satisfied that:

• Clause 5.10 Heritage Conservation does not apply to the development, as the subject site is not identified as a heritage item or located within a heritage conservation area, nor does it adjoin a heritage item or heritage conservation area.

• Clause 6.1 Acid Sulfate Soils does not apply to the site as it is not classified as having Acid Sulfate Soils.

• Clause 5.21 Flood Planning does not apply to the proposal as the subject site is not identified as flood affected on the CLEP Flood Planning Map.

• Clause 6.4 Stormwater Management applies to this site, and is satisfied by the provision of an updated Stormwater Management Plan prepared by Leading Engineers.

• Clause 6.6 Essential Services is satisfied as the site is adequately serviced in terms of water, electricity and sewage. Adequate stormwater drainage is indicated by the Stormwater Management Plan by Leading Engineers, and vehicular access demonstrated by the architectural plans.

10. Pursuant to cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the SEE states that the site has historically been used for residential purposes and there is no indication of soil disturbance. Subsequently, I am satisfied that the land is suitable for the intended purpose.

11. An updated BASIX certificate has been provided that relates to the amended development, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

12. Based on the architectural drawings, I am satisfied that the requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), cl 30 have been met for the following reasons:

• A communal living room has been provided, in accordance with cl 30(1)(a).

• No boarding rooms exceed the 25m² gross floor area maximum of cl 30(1)(b).

• Occupation of each room is limited in the plan of management to two lodgers, as per cl 30(1)(c).

• Adequate bathroom and kitchen facilities are provided as required by cl 30(1)(d).

• Lodgings have been provided for an on-site boarding house manager as required by cl 30(1)(e).

• Adequate bicycle and motorbike facilities have been provided in accordance with cl 30(1)(h).

13. Pursuant to SEPP ARH cl 30A Character of local area, I am satisfied based on the joint submission of the parties, that amendments relating to building setbacks and roof form adequately address the character of the local area, and that the overall design of the development is compatible with this character.

14. The development application was notified from 18 December 2018 to 30 January 2019, in accordance with the (now repealed) Part A3 of the Canterbury Development Control Plan 2012. All objectors were subsequently notified of Council’s intention to enter into this s34 agreement and given the opportunity to comment further. I am satisfied based on the joint submissions of the parties that the concerns raised by objectors have been adequately addressed, or are identified as issues that would not be pressed further due to the provisions of the SEPP ARH and CLEP.

15. For these reasons, 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.

16. 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.

17. The Court notes:

1. Canterbury Bankstown Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning & Assessment Regulation 2000, to the applicant amending the application for development consent DA515/2018.

2. Canterbury Bankstown Council has uploaded the amended application on the NSW Planning Portal on 5 October 2021 (reference PAN-515/2018).

3. The applicant has subsequently filed the amended application with the Court on No. DA 515/2018 on 7 October 2021.

18. The Court orders:

1. The appeal is upheld.

2. Development Application Number DA 515/2018 for demolition of existing structures and construction of a three-storey boarding house containing 22 boarding rooms (including 1 manager’s room) and one basement level containing carparking with 11 car spaces and 5 motorcycles spaces on Lot 16 in Deposited Plan 4357 otherwise known as 37 Claremont Street, Campsie is approved subject to the conditions in Annexure “A” to this agreement.

3. The Applicant is the pay the Council’s costs thrown away as a result of the amended plans in the agreed sum of $2,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (258604, pdf)

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Decision last updated: 08 October 2021