Elazzi v Canterbury-Bankstown Council

[2020] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elazzi v Canterbury-Bankstown Council [2020] NSWLEC 1233
Hearing dates:	Conciliation conference on 20 May 2020
Date of orders:	29 May 2020
Decision date:	29 May 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	Refer to orders at [18]
Catchwords:	DEVELOPMENT APPLICATION – boarding house –amenity – character – parking – conciliation conference – agreement between the parties – orders
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 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:	Milad Tanios Elazzi (First Applicant) Elie Abdallah (Second Applicant) Mahmoud Kaoutarani (Third Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: S Shneider (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent)   Solicitors: Houston Dearn O'Connor (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/38979
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 328/2018 by Canterbury-Bankstown Council (hereafter the Council) for the demolition of existing structures and construction of a four storey boarding house of 36 rooms with parking on Lot 32 DP 832, also known as 91 Duke Street, Campsie (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 May 2020. I presided over the conciliation conference. There were two objectors whom provided written submission at this conciliation. Their issues have been considered by the parties in the making of this agreement.

4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA’s supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal.

5. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 328/2018 with conditions.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act after being satisfied, pursuant to s 4.15(1), to grant consent to DA 328/2018 with conditions, as described in Annexure A.

7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Canterbury Environmental Plan 2012 (CLEP). In addition, the Canterbury Development Control Plan 2012 (CDCP) is of consideration to grant consent to the DA.

8. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans, plan of management and the agreed conditions of consent, which the parties agree address the relevant requirements for consideration. The proposed development provides sufficient parking for a 20 room boarding house with a manager, appropriate internal amenity and is consistent with the character of the local area. The parties agree that the requirements of SEPP ARH are satisfied, and specifically cll 29(2) and 30A, which relate to the contentions are resolved.

9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 1055524_02, dated 18 May 2020, relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

10. With regards to SEPP 55, the parties are satisfied that the proposed development complies, and specifically with cl 7(1), by the stage 1 and 2 site investigations that support the DA.

11. The site is located within the R4 High Density Residential Zone, as described in the CLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the CLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are satisfied.

12. The proposed development satisfies the numeric requirements and relevant objectives of the CLEP.

13. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the CDCP are achieved to the satisfaction of the parties. The parties agree that the amended design shown in the plans addresses any potential amenity impacts raised in objection and as a contention.

14. The parties agree that the requirements of the CDCP are complied with, based on the amended plans, conditions of consent and a Plan of Management. The proposed development was publicly notified in accordance with the CDCP. During the initial notification period, 13 submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions.

15. Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties.

16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 328/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.

17. 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.

18. The Court orders that:

1. The Applicant is granted leave to rely on the following amended plans:

DWG NO.	DESCRIPTION		PREPARED BY	REV	DATE
DA00	Cover Page		zta group	F	14/04/2020
DA00.1	3D Perspective View		zta group	F	14/04/2020
DA01	Site Plan and Analysis		zta group	F	14/04/2020
DA02	Basement Plan		zta group	F	14/04/2020
DA03	Ground Floor Plan		zta group	F	14/04/2020
DA04	First Floor Plan		zta group	F	14/04/2020
DA05	Second Floor Plan		zta group	F	14/04/2020
DA06	Roof Plan		zta group	F	14/04/2020
DA07	West Elevation		zta group	F	14/04/2020
DA08	East Elevation		zta group	F	14/04/2020
DA09	South Elevation		zta group	F	14/04/2020
DA10	North Elevation		zta group	F	14/04/2020
DA11	Section 1-1		zta group	F	14/04/2020
DA12	Soil Water Management Plan and Demolition Plan		zta group	F	14/04/2020
DA13	Street Elevation and Front Fence Details		zta group	F	14/04/2020
DA14	Shadow Diagram – Winter		zta group	E	07/04/2020
DA14.1	Shadow Diagram Winter 2		zta group	E	07/04/2020
DA15	Shadow Perspective – Winter		zta group	E	07/04/2020
DA15.1	Shadow Perspective – Winter 2		zta group	E	07/04/2020
DA15.2	Shadow Perspective – Winter 3		zta group	E	07/04/2020
DA15.3	Shadow Perspective – Winter 4		zta group	E	07/04/2020
DA15.4	Shadow Perspective – Winter 5		zta group	E	07/04/2020
DA15.5	Shadow Perspective – Winter 6		zta group	E	07/04/2020
DA16	Finishes Schedule		zta group	F	14/04/2020
DA17	FSR Diagrams		zta group	F	14/04/2020
DA18	Room Layout Diagrams and Calculation Table		zta group	F	14/04/2020
LPS34 18 – 338 Sheet 1	Hardscape Plan		Conzept Landscape Architects	G	30/10/2019
LPS34 18 – 338 Sheet 2	Irrigation Concept Plan		Conzept Landscape Architects	F	30/10/2019
LPS34 18 – 338 Sheet 3	Landscape Plan		Conzept Landscape Architects	G	30/10/2019
LPS34 18 – 338 Sheet 4	Specification & Detail		Conzept Landscape Architects	B	25/06/2019
-	Detail and Contour Survey		Structerre Surveying	-	03/04/2018
C-000	Cover Sheet & Drawing List		Structerre Consulting	A	30/10/2019
C-401	Stormwater Drainage Concept Plan - Site		Structerre Consulting	A	30/10/2019
C-402	Stormwater Drainage Concept Plan – Basement		Structerre Consulting	A	30/10/2019
C-403	Stormwater Drainage Concept Plan – Gnd Flr		Structerre Consulting	A	30/10/2019
DOCUMENT		PREPARED BY		REV	DATE
Plan of Management		-		-	07/05/2020
Noise Impact Assessment		Environmental Monitoring Services		0	27/04/2020
Stage 1 Preliminary Site Investigation		Construction Sciences		R01	23/04/2020
Stage 2 Detailed Site Investigation		Construction Sciences		-	07/05/2020
Access Report		Access-i Pty Ltd		R2.0	31/10/2019
Building Code of Australia Design Compliance Report		Matt Shuter + Associates		02	03/03/2020
Traffic and Parking Assessment		Varga Traffic Planning Pty Ltd		-	10/10/2019
BASIX Certificate No. 1055524M_2		Building & Energy Consultants Australia		-	18/05/2020

2. The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000.00 within 21 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. DA/328/2018 for the demolition of existing structures and construction of a 3 storey boarding house containing 20 boarding rooms (including 1 manager’s room), 1 communal living room and kitchen and ground floor communal open space over 1 level of basement parking containing 10 car parking spaces (including 1 accessible space), 4 motorcycle spaces and 4 bicycle spaces and associated landscaping works on the land at 91 Duke Street, Campsie is approved subject to the conditions of consent annexed hereto and marked “A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (439710, pdf)

Architectural Plans (6730995, pdf)

Landscape Plans (3417244, pdf)

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Decision last updated: 29 May 2020