Darwich v Canterbury-Bankstown Council
[2022] NSWLEC 1206
•19 April 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Darwich v Canterbury-Bankstown Council [2022] NSWLEC 1206 Hearing dates: Conciliation conference held 14, 28 February, and 15 March 2022, final agreement filed 30 March 2022 Date of orders: 19 April 2022 Decision date: 19 April 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-313/2021 and rely on the amended plans and documents listed at condition 1.1 of Annexure A.
(2) Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of these orders.
(3) The Applicant’s written request, pursuant to clause 4.6 of the Bankstown Local Environmental Plan 2015 (BLEP), seeking to vary the development standard for minimum lot width as set out at cl 4.1A(2)(a) of the BLEP, is upheld.
(4) The appeal is upheld.
(5) Consent is granted to Development Application DA-313/2021 (as amended) for the demolition of existing structures and construction of a two-storey attached dual occupancy with Torrens Title subdivision at 21 Riga Street, Greenacre, subject to the conditions of consent contained at Annexure A.
Catchwords: DEVELOPMENT APPLICATION – attached dual occupancy – cl 4.6 written request – minimum lot width – agreement between the parties – orders
Legislation Cited: Bankstown Local Environmental Plan 2015, cll 4.1A, 4.6
Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021)
Canterbury-Bankstown Community Participation Plan
Category: Principal judgment Parties: Sam Darwich (Applicant)
Canterbury-Bankstown Council (Respondent)Representation: Counsel:
Solicitors:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Storey and Gough Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2021/334492 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-313/2021 (the DA) by Canterbury-Bankstown Council (the Respondent). The DA sought consent for the demolition of existing structures and construction of a two-storey attached dual occupancy with Torrens title subdivision at 21 Riga Avenue, Greenacre (the site).
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The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 and 28 February, and 15 March 2022. I presided over the conciliation conference.
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Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, the matter commenced with a site view limited in the number of participants, and thereafter was conducted by Microsoft Teams.
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During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.
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Whilst the amended DA remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions initially raised by the Respondent, which in turn relate primarily to access to sunlight, site suitability and lot width, amongst other contentions.
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Of note, the amended DA has been reconfigured internally to improve access to available sunlight within living rooms, and to mitigate against the limited site width.
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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 amended DA.
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There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.
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The DA was publicly notified from 19 May to 3 June 2021 in accordance with the requirements of the Canterbury-Bankstown Community Participation Plan. No submissions were received by the Respondent. Consequently, I am satisfied, that mandatory community consultation requirements set out at s 2.22 of the EPA Act have been met.
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The parties agree, and I am satisfied, that the Bankstown Local Environmental Plan 2015 (BLEP) is a relevant environmental planning instrument. The site is zoned R2 Low Density Residential and the proposed development - characterised as dual occupancy development - is permissible with consent.
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The parties agree, and I am satisfied, that all principal development standards of the BLEP have been met by the DA, with the exception of cl 4.1A(2)(a) - Minimum lot sizes and special provisions for dual occupancies - which establishes a minimum site area of 500sqm and minimum lot width of 15m for the purposes of dual occupancy development within the R2 zone.
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While the amended DA meets the development standard for minimum site area of 500sqm with a measured site area of 594.96sqm, it does not meet the standard for minimum lot width of 15m. Rather, the site presents a lot width to the street of 14.710m, falling 290mm short of the development standard.
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In such an instance, cl 4.6(3) of the BLEP requires consideration of a written request from the Applicant demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
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Clause 4.6(4) of the BLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
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Additionally, cl 4.6(4)(b) of the BLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary.
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As required by cl 4.6 of the BLEP, the Applicant has provided a written request (prepared by Pivotal Planning and dated February 2022) seeking to vary the minimum lot width development standard.
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The parties agree, and I am satisfied, that the written request adequately justifies the variance to the minimum lot width development standard for the following reasons. The objectives of cl 4.1A of the BLEP seek to ensure that lot sizes are sufficient to appropriately accommodate dual occupancies, and to minimise any likely adverse impacts of development on the amenity of the area.
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The minimum lot width variation of 290mm is minor in nature, representing a departure to the development standard of 1.93%. The variation results from the inherent site characteristics and geometry.
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The DA has been amended to resolve the contentions previously raised by the Respondent, and in particular has now been reconfigured internally to improve access to available sunlight within living rooms that address the primary street. I am also satisfied the variation to the minimum lot width brings with it no material environmental impacts or additional overshadowing.
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Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to minimum lot width.
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The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. Having regard to the historic use of the site for residential purposes, the parties agree the land is unlikely to be contaminated and is suitable for the proposed development. I am satisfied, cl 7(1) of SEPP 55 has been appropriately addressed.
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The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). Two BASIX certificates, one for each of the proposed Torrens Titled dwellings, dated 15 March 2022 have been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate.
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Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.
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The Court notes that:
Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent.
The amended DA was uploaded to the NSW Planning Portal on 15 March 2022.
The Applicant has filed the amended DA with the Court on 30 March 2022.
Orders
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The Court orders that:
Leave is granted to the Applicant to amend Development Application DA-313/2021 and rely on the amended plans and documents listed at condition 1.1 of Annexure A.
Pursuant to Section 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $2,000 within 28 days of these orders.
The Applicant’s written request, pursuant to clause 4.6 of the Bankstown Local Environmental Plan 2015 (BLEP), seeking to vary the development standard for minimum lot width as set out at cl 4.1A(2)(a) of the BLEP, is upheld.
The appeal is upheld.
Consent is granted to Development Application DA-313/2021 (as amended) for the demolition of existing structures and construction of a two-storey attached dual occupancy with Torrens Title subdivision at 21 Riga Street, Greenacre, subject to the conditions of consent contained at Annexure A.
………………………..
M Pullinger
Acting Commissioner of the Court
(Annexure A) (261887, pdf)
(Combined Architecturals) (19325651, pdf)
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Decision last updated: 19 April 2022
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