El-Zebde v Canterbury-Bankstown Council

[2021] NSWLEC 1082

Land and Environment Court

New South Wales

Medium Neutral Citation:

El-Zebde v Canterbury-Bankstown Council [2021] NSWLEC 1082

Hearing dates:

Conciliation conference on 5 February 2021

Date of orders:

18 February 2021

Decision date:

18 February 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon:

(a) Written request prepared pursuant to clause 4.6 of Bankstown Local Environmental Plan 2015 (BLEP15) in relation to a variation which is sought to the development standards related to minimum lot sizes and special provisions for dual occupancies contained in clause 4.1A of BLEP15, prepared by GAT & Associates, dated 15 January 2021;

(b) Revision B of Architectural Plans numbered DA01, DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09 prepared AKT Engineering and Consulting dated 8 December 2020.

(2) The Applicant’s written request prepared pursuant to clause 4.6 of BLEP15 dated 15 January 2021 seeking to justify the breach of the development standard pertaining to the minimum front building line width pursuant to clause 4.1A of BLEP15 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of BLEP15. Consequently, the Applicant’s written request is well founded and is upheld.

(3) The appeal is upheld.

(4) Development Application No. DA-929-2019 seeking demolition of existing structures and construction of a two-storey attached dual occupancy with front brick fence and Torrens title subdivision at 2 Willow Place, Bass Hill (Lot 8 in Deposited Plan 238203) is approved subject to the Conditions of Consent annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – Dual occupancy development – variation to lot frontage control – conciliation agreement – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 49

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6(1)

Bankstown Local Environmental Plan 2015, cll 4.1A, 4.3, 4.4, 4.6, 6.1, 6.2

Category:

Principal judgment

Parties:

Khodr Ali El-Zebde (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Cordoba Legal (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2020/188501

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Khodr Ali El-Zebde (the Applicant) against the Respondent’s actual refusal of his development application DA-929/2019. The development application seeks consent for demolition of the existing structures and construction of a two-storey attached dual occupancy with new brick fence. The application also seeks consent for torrens title subdivision. The development is proposed at 2 Willow Place, Bass Hill (Lot 8 in DP 238203).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The appeal was listed for conciliation on 5 February 2021 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). At the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 5 February 2021.

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. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000, consent has been provided by the owners of the land the subject of the Development Application.

2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) applies to the site. Clause 7(1) of SEPP 55 requires the consent authority to consider whether the site is contaminated. The development application is accompanied by a report prepared by BeEnviron Group Pty Ltd dated 18 June 2019 which concludes that ‘the site is considered suitable from a contamination perspective for continued residential use’. I accept the agreed submission of the parties that the site poses a negligible risk of contamination and that the land is suitable for the proposed use.

3. A BASIX Certificate has been provided, which in combination with the conditions of consent, satisfies the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. The proposed development is subject to the provisions of the Bankstown Local Environmental Plan 2015 (BLEP15) and the subject site is zoned R2 Low Density Residential. The proposed development works are for the purpose of dual occupancies which is a permissible use in the R2 Low Density Zone. In determining the development application, I have had regard to the objectives of the zone.

5. The development complies with the height of buildings standard (cl 4.3 of BLEP15) and the floor space ratio standard (cl 4.4 of BLEP15).

6. Further, the development application is compliant with the minimum lot size standard at cl 4.1A(2)(a) of 500m² as the subject site has an area of 621.3m². However, the clause also has a requirement for the lot to have a width of at least 15m at the front building line. The parties have taken a conservative interpretation of the phrase ‘at the front building line’, necessitating the consideration of a variation request pursuant to cl 4.6 of BLEP15. I have reviewed the request and, in accordance with cl 4.6 of BLEP15, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary as the objectives of cl 4.1A of BLEP15 are met notwithstanding the noncompliance (cl 4.6(3)(a) of BLEP15).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of BLEP15).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of BLEP15 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the objectives of cl 4.1A of BLEP15. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of BLEP15 are met.

5. Pursuant to cl 4.6(5) of BLEP15, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of BLEP15 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

7. Clause 6.1 ‘Acid Sulphate Soils’ of BLEP15 applies to the site. The application is accompanied by a report prepared by BeEnviron Group Pty Ltd dated 18 June 2019 which concludes that there is ‘no known occurrence of Acid Sulphate Soils within the soil profile’ of the subject site. The development application satisfies cl 6.1 of BLEP15.

8. Clause 6.2 ‘Earthworks’ of BLEP15 applies to the site. After reviewing the documents supporting the development application, I am satisfied that the proposed development meets the requirements of cl 6.2(3) of BLEP15.

9. The application was notified in accordance with the relevant development control plan and the submissions have been considered.

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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. Leave is granted to the Applicant to rely upon:

1. Written request prepared pursuant to clause 4.6 of Bankstown Local Environmental Plan 2015 (BLEP15) in relation to a variation which is sought to the development standards related to minimum lot sizes and special provisions for dual occupancies contained in clause 4.1A of BLEP15, prepared by GAT & Associates, dated 15 January 2021;

2. Revision B of Architectural Plans numbered DA01, DA02, DA03, DA04, DA05, DA06, DA07, DA08, DA09 prepared AKT Engineering and Consulting dated 8 December 2020.

2. The Applicant’s written request prepared pursuant to clause 4.6 of BLEP15 dated 15 January 2021 seeking to justify the breach of the development standard pertaining to the minimum front building line width pursuant to clause 4.1A of BLEP15 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of BLEP15. Consequently, the Applicant’s written request is well founded and is upheld.

3. The appeal is upheld.

4. Development Application No. DA-929-2019 seeking demolition of existing structures and construction of a two-storey attached dual occupancy with front brick fence and Torrens title subdivision at 2 Willow Place, Bass Hill (Lot 8 in Deposited Plan 238203) is approved subject to the Conditions of Consent annexed hereto and marked “A”.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (209808, pdf)

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Decision last updated: 18 February 2021