Donnellan/Watson Family SMSF Pty Ltd (ACN 632 075 024) atf Donnellan/Watson Family Superannuation Fund v Canterbury-Bankstown Council

[2024] NSWLEC 1522

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Donnellan/Watson Family SMSF Pty Ltd (ACN 632 075 024) atf Donnellan/Watson Family Superannuation Fund v Canterbury-Bankstown Council [2024] NSWLEC 1522

Hearing dates:

Conciliation conference on 31 July and 1 August 2024

Date of orders:

27 August 2024

Decision date:

27 August 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant's written request, pursuant to clause 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the CBLEP, is upheld.

(2) The appeal is upheld.

(3) Development Application DA907/2023 for demolition of the existing site structures, construction of a residential flat building comprising 42 apartments, basement parking for 58 vehicles, 13 bicycles and 2 motor bikes together with strata subdivision at 44-46 Wellington Road Chester Hill NSW 2162 being Lot 100 in Deposited Plan 1283293 is determined by the grant of consent subject to conditions contained in Annexure A.

(4) The Applicant is to pay the Respondent's costs thrown away as a result of the Amended Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.14, 8.15

Land and Environment Court Act 1979, ss 34, 39

Canterbury-Bankstown Local Environmental Plan 2023, cll 2.6, 2.7, 4.1B, 4.3, 4.4, 4.6, 6.3, 6.15, 6.9

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 6.1

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100

State Environmental Planning Policy (Housing) 2021, Sch 7A, Ch 4, ss 8, 147

Texts Cited:

Canterbury-Bankstown Community Participation Plan 2022

NSW Planning and Environment, Apartment Design Guide 2015

Category:

Principal judgment

Parties:

Donnellan/Watson Family SMSF Pty Ltd (ACN 632075024) atf Donnellan/Watson Family Superannuation Fund (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
T To (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/322130

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No DA-907/2023 (Application) seeks consent for the demolition of the existing structure and construction of a six (6) storey residential flat building comprising 42 apartments, basement parking for 58 car spaces, and associated landscaping, with strata subdivision (the Proposed Development) at 44 & 46 Wellington Road, Chester Hill legally described as Lot 100 in DP 1283293 (the Site).

2. The proceedings commenced as a hearing on Site on 30 July 2024. No objectors were present and at the conclusion of the Site view the parties sought time to discuss the matters raised on Site. On the application of the parties when the proceedings resumed in court, the hearing was adjourned to 12 pm, 31 July 2024 by which time the parties made an application to have the matter listed for a conciliation conference. The parties tendered a number of documents during the hearing include the Joint Expert Report (JER) prepared by Anthony Betros, Town Planner and Alan Cadogan, Urban Planner for the Respondent and Greg Boston, Town Planner and Peter Smith, Urban Planner for the Applicant filed on 24 July 2024 (Ex 4).

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 31 July 2024. I 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 development consent to the 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 to be the terms of cl 4.6 of the Canterbury Bankstown Local Environmental Plan 2023 (CBLEP) to vary a height of building (HOB) development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

8. Owner’s consent was provided and can be found at Tab 17 of the Class 1 Application.

9. The Site is located within zone R4 High Density Residential. The Proposed Development is for a Residential Flat Building (RFB) which is a permitted land use within this zone. Strata subdivision is permissible with consent (cl 2.6(1) CBLEP) and demolition is permissible with consent (cl 2.7 CBLEP)

10. Clause 4.1B of the CBLEP requires a minimum frontage of 30 metres and a minimum lot size of 1,500m² for an RFB. The Site achieves both of these requirements with a frontage of 30.475 metres and an area of 1817m².

11. The Site has a maximum permitted building height development standard of 19 metres under cl 4.3 of the CBLEP. The Application proposes a maximum building height of 20.64 metres or 8.6% in exceedance of the HOB development standard with the screen around the roof top plant. The Applicant relies on a written request pursuant to cl 4.6 of the CBLEP prepared by Greg Boston of BBF Town Planners dated 31 July 2024 (Written Request) to justify the contravention of the HOB development standard. I reproduce Height Limit Study Compliance Drawing CD07 Rev 7 dated 30 July 2024 below at Fig 1.

Fig 1: Height Limit Study Compliance Drawing CD07 Rev 7 prepared by Wolski Coppin Architecture dated 30 July 2024

12. Having read the Written Request I conclude that I am satisfied that the Written Request seeking to justify the contravention of the development standard in cl 4.3 of the CBLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the CBLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out and I adopt the reasons given in the Written Request.

13. The Site has a maximum permitted floor space ratio (FSR) of 1.75:1 under cl 4.4 of the CBLEP. The Proposed Development complies with this development standard because it seeks a complying FSR of 1.749:1.

14. The Proposed Development, being an RFB with at least 4 storeys, is subject to the terms of cl 6.15 Design Excellence which includes the objective of ensuring that development exhibits high quality architectural, urban and landscape design. Clause 6.15 of the CBLEP provides that consent must not be granted to development which the clause applies unless the consent authority is satisfied that the development exhibits design excellence.

15. Although the Respondent’s Amended Statement of Facts and Contentions contended that the development did not exhibit design excellence, the experts identified in the JER a number of matters in the Amended Plans that some (or all) of the experts considered required further amendment. The amendments effected by the Further Amended Plans have implemented the following matters arising from the joint report:

1. Extending gardens to ground floor west facing apartments towards the boundary.

2. Extending the window line of west facing ground floor apartments.

3. Movement of fire stairs and egress pathway to the eastern side of the building.

4. One-way driveway and reduced waste room to improve streetscape presentation.

5. Setback of the southern edge of the top floor by 3 metres to improve streetscape presentation.

6. Internal amendments to apartments to increase solar access and privacy.

7. Reconfiguration of G505 to ensure floor to ceiling heights can be achieved.

8. Relocation of bike rail storage from front setback.

9. Various amended articulation of the western façade.

10. Limited shielding of unenclosed lift lobby areas.

11. Expansion of Private Open Space to Unit GO1 to the east.

16. As a result of the above amendments the parties, and the Court, are now satisfied that the development exhibits design excellence.

17. Section 8(2A) of Schedule 7A of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) provides that Chapter 4 of the Housing SEPP applies to the Proposed Development notwithstanding that the development application was made, but not determined, on or before 14 December 2023.

18. Section 147(1) in Chapter 4 of the Housing SEPP provides that development consent must not be granted to residential apartment development unless the consent authority has considered the following:

(a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9,

(b) the Apartment Design Guide,

(c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.

19. The Proposed Development is supported by a Design Verification Statement, prepared by Wolski Coppin dated 31 July 2024, which confirms that the Proposed Development is consistent with the design quality principles and the Apartment Design Guide, accordingly, s 147 of the Housing SEPP has been considered and satisfied.

20. Another jurisdictional prerequisite relates to Stormwater management and water sensitive urban design in accordance with the terms of cl 6.3 of the CBLEP. In response to cl 6.3(3) of the CBLEP, the parties rely on the stormwater plans listed in consent condition 33 and the BASIX certificate and explain that the Proposed Development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water by providing deep soil landscaping around the perimeter of the building, and

2. includes on-site stormwater detention (16.22M³) and rain water re-use storage (5000L) with irrigation of 250sqm of common landscaped area, and

3. avoids significant adverse impacts of stormwater runoff on the land on which the development is carried out, adjoining properties and infrastructure, native bushland and receiving waters by on site stormwater detention and retention, and

4. includes stormwater and flooding measures by setting the building ground floor level above the overland flow path, and

5. is designed to incorporate the following water sensitive urban design principles:

1. protection and enhancement of water quality, by improving the quality of stormwater runoff from urban catchments through stormwater detention and rainwater retention and reuse,

2. minimisation of harmful impacts of urban development on water balance and on surface and groundwater flow regimes by on-site detention,

3. integration of stormwater management systems into the landscape in a way that provides multiple benefits, including water quality protection, stormwater retention and detention, public open space and recreational and visual amenity.

21. In accordance with the Statement of Environmental Effects (SEE) dated July 2023 and filed with the Class 1 Application, I am satisfied that water, electricity, sewerage, stormwater, waste management and vehicular access are all available to the Proposed Development as required by cl 6.9 of the CBLEP.

22. Clause 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated or potentially contaminated land and, if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use of the Proposed Development.

23. The Site is not identified as a contaminated site on the NSW Environmental Protection Authority’s list of notified sites, nor it is in the vicinity of any listed sites (SEE, p 28).

24. The Applicant has provided with the Class 1 Application, at Tab 23, a report specifying the findings of a preliminary site investigation (PSI) of the Site which concludes that the Site is not contaminated and is suitable for the proposed use. At section 10 of the PSI, the report states that at the instigation of the Respondent, it has been assessed whether past overflow parking within portion B of the Site, as depicted in photographs 6-6 and 6-7 of the PSI, has caused unacceptable contamination. Relevantly, the PSI concludes at section 12 as follows:

“Based on the site history review and field observations, DRM makes the following conclusions for the proposed land use scenario (multistorey apartment building with two level basement):

the potential for widespread unacceptable contamination to be present at the site is low. The limited soil contamination assessment did not identify unacceptable contamination at the test locations. We note that contamination that may be present at the site will be excavated and disposed offsite to facilitate the proposed two-level basement; and

the site is suitable for the proposed residential land use, from a contamination perspective.”

25. The Respondent submitted a request for concurrence to Sydney Trains under s 2.99 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) due to the proposed excavation and the proximity of the Site to the rail corridor. Sydney Trains provided concurrence on 14 September 2023 and again on 4 July 2024 to the Amended Plans subject to recommended conditions. The Court may grant consent on conditions agreed by the parties which amend the conditions suggested by Sydney Trains in accordance with its functions and powers pursuant to s 39(6) of the LEC Act and s 8.14(3) of the EPA Act. The parties agree that not all the recommended conditions are relevant because the proposed fence is on the boundary and no access to the rail corridor is required to construct or maintain the fence.

26. As the Proposed Development is for the purposes of residential accommodation, s 2.100(3) of the Transport SEPP, provides that the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

27. The Class 1 Application was accompanied by an acoustic report at Tab 2 which demonstrates compliance with the LAeq level requirements and conditions are agreed accordingly.

28. A very small portion of the north west corner of 46 Wellington Road is within the Georges River catchment pursuant to cl 6.1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The catchment area is to the immediate west of the subject property and the natural contours of the property fall away from the adjacent catchment. The part of the affected land is not built upon area but part of the common open space.

29. Pursuant to the Biodiversity SEPP, the following matters have been considered:

1. whether the development will have a neutral or beneficial effect on the quality of water entering a waterway:

1. the parties agree that the Proposed Development will have a neutral effect because stormwater collected on the Site is drained to Wellington Road drainage system which falls to the east away from the adjacent Georges River catchment;

2. whether the development will have an adverse impact on water flow in a natural waterbody:

1. the parties agree that there will be no such effect for the reasons given above;

3. whether the development will increase the amount of stormwater run-off from a site:

1. the parties agree that stormwater and rainwater is detained or retained to the Council's requirement;

4. whether the development will incorporate on-site stormwater retention, infiltration or reuse:

1. the parties agree that the answer is yes and rely on the stormwater plans listed at consent condition 33 which include onsite detention and reuse of water;

5. the impact of the development on the level and quality of the water table:

1. the parties agree that there will be no such impact for the reasons given above;

6. the cumulative environmental impact of the development on the regulated catchment:

1. the parties agree that no impact is predicted as stormwater is drained away from the Georges River catchment but the affected area remains available for infiltration as currently;

7. whether the development makes adequate provision to protect the quality and quantity of ground water:

1. the parties agree that groundwater is not expected to be impacted by the basement excavation.

30. Accordingly, the consent authority is satisfied that:

1. the effect of the Proposed Development on the quality of water entering a natural waterbody is considered to be neutral; and

2. no impact is expected on water flow in a natural waterbody.

31. The development application was notified in accordance with the requirements of Canterbury-Bankstown Community Participation Plan 2022 from 16 August to 5 September 2023 and, as detailed in the Statement of Facts and Contentions, no submissions were received. The Council has determined that the amendments to the development application do not require re-notification as the impacts are reduced.

32. 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. I adopt the reasons given by the parties as I have set out in this judgment.

33. 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.

Notations:

34. The Court notes that:

1. The Respondent, Canterbury-Bankstown Council, as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 907/2023 in accordance with the following documents:

DOCUMENT	AUTHOR	DATE
Architectural Drawings
DA00 Cover / Location Plan, Rev G  DA01 Lower Basement, Rev F  DA02 Basement, Rev F  DA03 Ground, Rev G  DA04 Level 1 (Level 2 & Level 3 Typical), Rev F  DA05 Level 4, Rev F  DA06 Level 5, Rev F  DA07 Roof & Site Plan, Rev F  DA08 West & East Elevation, Rev F  DA09 South Elevation (Wellington Rd.) & North Elevation, Rev F  DA10 Street Elevation (Wellington Road), Rev F  DA11 Section AA (Longitudinal Section), Rev F  DA12 Section BB (Cross Section) & Ramp Section, Rev G	Wolski Coppin Architecture	31 July 2024  (Rev F)  31 July 2024  (Rev G)
Compliance Drawings
CD01 Site Analysis, Rev C  CD02 GFA Calcs, Rev G  CD03 Landscape/Open Space Calculations, Rev C  CD04 Communal Open Space Calculations, Rev C  CD05 Landscape Calculations at Front Setback, Rev C  CD06 Adaptable Units, Rev C  CD07 Height Limit Study, Rev F  CD08 March Shadow Diagram, Rev C  CD09 June Shadow Diagrams, Rev C  CD10 View from the Sun 01, Rev C  CD11 View from the Sun 02, Rev C  CD12 View from the Sun 03, Rev C  CD13 View from the Sun 04, Rev C  CD14 Schedule of Colour and Finishes 01, Rev G  CD15 Schedule of Colour and Finishes 02, Rev G	Wolski Coppin Architecture	17 July 2024 (Rev C)  31 July 2024  (Rev F)  31 July 2024  (Rev G)
Design Verification Statement
Design Verification Statement for 44-46 Wellington Road, Chester Hill	Wolski Coppin Architecture	31 July 2024
Landscape Plan
169.24(22)/114’F’ Landscape Plan, Rev F	iScape Landscape Architecture	30 July 2024
Landscape Management & Maintenance Plan
Landscape Management and Maintenance Plan – Proposed Residential Development 44-46 Wellington Road, Chester Hill	iScape Landscape Architecture	July 2024
Stormwater Concept Plans
000 Cover Sheet Plan, Issue B  101 Stormwater Concept Plan Lower Basement Level Sheet 1 of 2, Issue E  102 Stormwater Concept Plan Lower Basement Level Sheet 2 of 2, Issue B  103 Stormwater Concept Plan Basement Level 1, Issue E  104 Stormwater Concept Plan Ground Level, Issue K  105 On-Site Detention Details and Calculations, Issue H  105.1 Catchment Plan & Long Section, Issue F  106 Catchment Plan & Long Section, Issue B  107 Miscellaneous Details Sheet, Issue C	Civil & Stormwater Engineering Services Pty Ltd	Various, to 22 July 2024
BASIX Certification
BASIX Certificate No. 1346516M_11	Senica Consultancy Group Pty Limited	1 August 2024
Site Waste Management Report
Site Waste Management Report Ref. SW22/10824, Version I	Senica Consultancy Group Pty Limited	22 July 2024
Plan of Subdivision of Lot 100 in DP 1283293, Ref. 6454
Draft Sheet 1 of 9, Location Plan  Draft Sheet 2 of 9, Lower Basement  Draft Sheet 3 of 9, Basement  Draft Sheet 4 of 9, Ground Floor  Draft Sheet 5 of 9, Level 1  Draft Sheet 6 of 9, Level 2  Draft Sheet 7 of 9, Level 3  Draft Sheet 8 of 9, Level 4  Draft Sheet 9 of  9, Level 5	Anthony John Bennett	23 July 2024
Strata Plan Administration Sheet
Strata Plan Administration Sheet, Plan of Subdivision of Lot 100 in DP 1283293 (Draft)	Anthony John Bennett	23 July 2024
Clause 4.6 Variation Request
Updated Clause 4.6 Variation Request – Height of Buildings	Boston Blyth Fleming Pty Limited	31 July 2024
Traffic
Letter from Transport Strategies to Steve Donnellan	Transport Strategies	31 July 2024

2. The documents listed above were filed with the Court on 1 and 22 August 2024.

Orders:

35. The Court orders:

1. The Applicant’s written request, pursuant to clause 4.6 of the Canterbury-Bankstown Local Environmental Plan 2023 (CBLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the CBLEP, is upheld.

2. The appeal is upheld. 

3. Development Application DA907/2023 for demolition of the existing site structures, construction of a residential flat building comprising 42 apartments, basement parking for 58 vehicles, 13 bicycles and 2 motor bikes together with strata subdivision at 44-46 Wellington Road Chester Hill NSW 2162 being Lot 100 in Deposited Plan 1283293 is determined by the grant of consent subject to conditions contained in Annexure A. 

4. The Applicant is to pay the Respondent's costs thrown away as a result of the Amended Application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

E Espinosa

Commissioner of the Court

322130.23 Annexure A

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Amendments

04 September 2024 - Pursuant to rule 36.17 of the UCPR (the slip rule), corrections to typographical errors are made in [7], [17], [28] and the coversheet.

Decision last updated: 04 September 2024