Emmi v Canterbury-Bankstown Council

[2020] NSWLEC 1514

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Emmi v Canterbury-Bankstown Council [2020] NSWLEC 1514

Hearing dates:

Conciliation conference on 16 October 2020

Date of orders:

27 October 2020

Decision date:

27 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Refer to orders at [13]

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

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

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020)

Category:

Principal judgment

Parties:

Ross Emmi (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
G Shapiro (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2019/381590

Publication restriction:

No

Judgment

1. COMMISSIONER: Ross Emmi (the Applicant) has appealed the refusal by Canterbury-Bankstown Council (the Respondent) of his development application DA-137/2018 seeking approval for the amalgamation of three lots into one, demolition of two dwellings and construction of a boarding house development, with at grade car parking and landscaping, (the Proposed Development) at 20-22 Wardell Road, Earlwood (the Subject Site).

2. The Subject Site is zoned R2 Low Density Residential under the provisions of Canterbury Local Environmental Plan 2012 (CLEP), and the Proposed Development is permissible within this zone.

3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 16 October 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s ‘COVID-19 Pandemic Arrangements Policy’ and a site view was not undertaken as part of the proceedings on 16 October 2020. The appeal had been the subject of a previous conciliation conference convened under s 34 of the LEC Act on 28 February 2020, and I had undertaken an inspection of the Subject Site in the context of that conference.

6. At the conciliation conference on 16 October 2020, 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 consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. The Applicant’s development application DA-137/2018 has been made with owners’ consent;

2. pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the requirements of cl 7(1) of SEPP 55 have been considered and they are satisfied in relation to those requirements as follows:

1. a Preliminary and detailed Site Investigation had been prepared in relation to the Subject Site and the Proposed Development by Douglas Partners in March 2018;

2. a Remediation Action Plan for the Subject Site had been prepared by Douglas Partners in August 2018 for the purpose identifying remediation works that would be undertaken to make the Subject Site suitable for its proposed use as a boarding house;

3. the Respondent advised that it had included conditions of consent that the land would be made suitable for the purpose of the Proposed Development and it is satisfied that the land would be remediated before the land is used for that purpose;

3. pursuant to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000, updated BASIX Certificates Nos. 905925S_04, 905922S_04 and 1116418S have been prepared in respect of the Applicant’s amended plans, and a condition of consent has been included in the agreed conditions of consent requiring compliance with the commitments indicated in the BASIX certificate;

4. DA-137/2018 was lodged, but not yet determined, at the time that clause 30AA of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) commenced operation, and due to the operation of cl 54C of the SEPP ARH, in relation to savings and transitional provisions, this application, which is for a boarding house with more than 12 rooms in the R2 Low Density Residential Zone, may be determined by the grant of consent;

5. the Proposed Development complies with the development standards in cll 4.3 and 4.4 of CLEP concerning the height of buildings and floor space ratios, respectively, of development on the Subject Site;

6. in respect of the provisions of Part 6 of CLEP:

1. relevant matters in relation to acid sulfate soils are detailed in the Applicant’s Class 1 Application such that they have been adequately considered for the purpose of cl 6.1;

2. relevant matters in relation to earthworks are detailed in the Applicant’s Class 1 Application such that they have been adequately considered for the purpose of cl 6.2;

3. relevant matters in relation to flood planning are detailed in the Applicant’s Class 1 Application such that they have been adequately considered for the purpose of cl 6.3;

4. relevant matters in relation to stormwater management are detailed in the Applicant’s Class 1 Application such that they have been adequately considered for the purpose of cl 6.4.

7. the Respondent is satisfied that the Proposed Development complies with all other development standards and controls under the CLEP and the Canterbury Development Control Plan 2012, subject to the Respondent’s conditions of consent;

8. DA-137/2018 as lodged with the Respondent was placed on notification for 14 days from 24 April 2020, and the Respondent confirmed that it had considered matters raised in submissions lodged in response to that notification in reaching agreement with the Applicant.

9. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

10. I am further 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.

11. 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.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court orders that:

1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Karadimas Investment Holdings Pty Ltd:

1. Drawing No. 0101 – Site Plan, Revision 24, dated 7 July 2020;

2. Drawing No. 0201 – Ground Floor Plan, Revision 24, dated 7 July 2020;

3. Drawing No. 0202 – First Floor Plan, Revision 24, dated 7 July 2020;

4. Drawing No. 0203 – Roof Plan, Revision 24, dated 7 July 2020;

5. Drawing No. 0501 – Elevations – Sheet 1, Revision 24, dated 7 July 2020;

6. Drawing No. 0502 – Elevations – Sheet 2, Revision 24, dated 7 July 2020;

7. Drawing no. 0503 – Elevations – Sheet 3, Revision 24, dated 7 July 2020;

8. Drawing No. 0504 – Boundary Elevations, Revision 24, dated 7 July 2020;

9. Drawing No. 0601 – Sections, Revision 24, dated 7 July 2020;

10. Drawing No. 2501 – Demolition & Boundary Re-alignment Plan, Revision 24, dated 7 July 2020;

11. Drawing No. 2503 – Sediment and Soil Erosion Plan, Revision 24, dated 7 July 2020;

12. Drawing No. 3001 – Shadow Analysis, Revision 24, dated 7 July 2020;

13. Drawing No. 3002 – Shadow Analysis, Revision 24, dated 7 July 2020;

14. Drawing No. 3003 – Shadow Analysis, Revision 24, dated 7 July 2020;

15. Drawing No. 3004 – Shadow Analysis, Revision 24, dated 7 July 2020;

16. Drawing No. 3005 – Shadow Analysis – 24 Wardell North Facade, Revision 24, dated 7 July 2020;

17. Drawing No. 3011 – GFA Plan, Revision 24, dated 7 July 2020;

18. Drawing No. 3012 – Deep Soil & Landscape Areas, Revision 24, dated 7 July 2020;

19. Drawing No. 3013 – TPZ Analysis, Revision 24, dated 7 July 2020; and

20. Drawing No. 3015 – Building Height and Wall 3D Analysis, Revision 24, dated 7 July 2020.

2. Leave is granted to the Applicant to rely on stormwater plan No. SK01 – Stormwater Design prepared by Andrew Wiersma dated 2 September 2020.

3. The Applicant is to pay the Respondent’s s 8.15(3) costs “thrown away” in the sum of $9,000.00 within 28 days.

4. The appeal be upheld.

5. Development Consent be granted to DA-137/2018 in respect of the property at 20-22 Wardell Road, Earlwood, comprising of Lot 1181 in DP456161, Lot A in DP346191 and Lot A in DP322845, for the amalgamation of three lots into one, demolition of two dwelling houses and factory structure, and construction of a boarding house development with associate car parking and landscaping, subject to the conditions in Annexure ‘A’.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (281603, pdf)

**********

Amendments

29 October 2020 - Correction to cover sheet.

Decision last updated: 29 October 2020