Elfalak v Canterbury-Bankstown Council

[2021] NSWLEC 1609

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elfalak v Canterbury-Bankstown Council [2021] NSWLEC 1609

Hearing dates:

Conciliation conference held on 7 October 2021

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The application to modify Development Consent No. DA 483/2018 in the terms set out in Annexure A is approved.

(3) The terms of the consolidated Development Consent No. DA 483/2018, as modified are set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – alterations to existing approved dwelling – substantially the same – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 4.3, 4.4 and 4.6

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cl 121B

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

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

Texts Cited:

Bankstown Development Control Plan 2015

Category:

Principal judgment

Parties:

George Elfalak (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2021/187427

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Modification Application DA483/2018/B (the MA) by Canterbury-Bankstown Council (hereafter the Council), which seeks alterations to the roof, first floor rear balcony, driveway, ground and first floor layout to the approved dwelling on Lot 17 DP 12309, known as 4 Gwandalan Road, Padstow (hereafter the site).

2. The Class 1 appeal seeking changes to the approved dwelling design in the consent of the MA is made pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference, pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held primarily by MS Teams.

4. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the MA that contextualise the site.

5. The Council agreed for the applicant to amend the plans and documents, that amend the MA, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court. Prior to the conciliation conference, after expert consultation, the parties agreed to amend the approved design of the dwelling, and thereby grant consent to the MA, as identified in Annexure A of the orders.

7. This decision of the parties is to uphold the appeal and grant consent to the MA, DA483/2018/B, which modifies DA483/2018, with consolidated conditions of consent in Annexure B.

8. 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 4.55(1A) of the EPA Act to grant consent to the MA,DA483/2018/B, as agreed, by terms set out in Annexure A and consolidated conditions to vary DA482/2018, in Annexure B. The proposed amendment to the DA is limited to that described in Annexure A, upon which the Court relies.

9. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(1A) of the EPA Act, as the: EPA Reg; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Bankstown Local Environmental Plan 2015 (BLEP); and Bankstown Development Control Plan 2015 (BDCP). The parties agree that the amended design and conditions of consent address the jurisdictional requirements and merits of the propsoed development.

10. The amendments to the approved dwelling are required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.

11. The parties agree that the relevant requirements of the BLEP remain satisfied by the proposed amendments, as shown in amended plans. The experts agree that despite the numeric variations in the development standards of cll 4.3 and 4.4, the objectives of these standards are achieved. The amended design changes will not cause adverse impact to the character of the surrounding area or amenity of the future residents. There is no requirement to satisfy cl 4.6.

12. Based on the agreement of the parties, the contentions that relate to the controls of the BDCP are resolved. The parties agree that the amenity to the future and adjoining residents is not adversely impacted by the amendments ought by the applicant. The Council confirms that notification of the application under appeal was made, pursuant to the requirements of the BDCP, which satisfies subss 4.55(1A)(c) and (d) of the EPA Act. No written submissions were received.

13. The parties agree that the modification as agreed is substantially the same as previously approved, and that the requirements of s 4.55(1A)(b) of the EPA Act are satisfied. The parties also agree that the proposed development is of minimal environmental impact, that the requirements of the BDCP have been considered and no objections were received from notification of the MA. The requirements of subss 4.55(1)(a), (3) and (4) are addressed to their satisfaction.

14. I am satisfied that based on the evidence and advice of the experts, there are no jurisdictional impediments to this agreement, as described in Annexure A. The Council has undertaken a merit assessment considering the relevant requirements.

15. This amended MA seeking modification of DA483/2018, satisfies the requirements of s 4.55(1A) of the EPA 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 Court Act to dispose of the proceedings in accordance with the parties' decision.

17. The Court notes:

1. That the Canterbury-Bankstown Council as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of the development consent (DA 483/2018) granted by the Canterbury-Bankstown Council on 23 November 2020 by DA 483/2018/B.

2. That the Canterbury-Bankstown Council has uploaded or verified the amended application on the NSW planning portal on 6 October 2021.

3. That the applicant has subsequently filed the amended application with the Court on 6 October 2021.

18. The Court orders that:

1. The appeal is upheld.

2. The application to modify Development Consent No. DA 483/2018 in the terms set out in Annexure A is approved.

3. The terms of the consolidated Development Consent No. DA 483/2018, as modified are set out in Annexure B.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (112040, pdf)

Annexure B (274225, pdf)

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