Farris v Canterbury Bankstown Council

[2020] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:	Farris v Canterbury Bankstown Council [2020] NSWLEC 1170
Hearing dates:	Conciliation conference on 31 March 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	Refer to orders at [10]
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Falah Farris (Applicant) Canterbury Bankstown Council (Respondent)
Representation:	Counsel: S Patterson (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Wilshire Webb Staunton Beattie (Applicant) Canterbury Bankstown Council (Respondent)
File Number(s):	2019/385010
Publication restriction:	No

Judgment

1. COMMISSIONER: Falah Farris (the Applicant) has appealed the refusal by Canterbury Bankstown Council (the Respondent) of his development application (609/2019) which sought consent for the change of use of an existing outbuilding (approved under CDC-271/2018) for its use as a secondary dwelling (the Proposed Development), at 1B Buist Street, Yagoona (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

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 March 2020, and I have 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 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

6. The parties have explained how the Applicant’s amended plans have satisfied relevant jurisdictional matters, including in relation to the zoning of the land, and development standards pertaining to the maximum permitted floor space ratio and the height of buildings on the Subject Site, and the compliance or otherwise of the Applicant’s proposed development, as amended, with those standards. The Applicant has provided a valid BASIX Certificate related to his proposed Development.

7. I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EPA Act can be exercised by the Court.

8. I am also 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.

9. 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.

10. The Court orders:

1. Leave is granted to the Applicant to rely on the following amended plans and documents:

1. Architectural Plans prepared by Ridge Designs:

1. Site Plan 1.01 Revision B dated 28 February 2020.

2. P.O.S. Calculations 2.01 Revision B dated 28 February 2020.

3. Ground Floor Plan and Roof Plan 3.01 Revision B dated 28 February 2020.

4. Elevations and Section 3.02 Revision B dated 28 February 2020.

5. BASIX Note 4.01 Revision B dated 28 February 2020.

2. BASIX Certificate No. 899432S_04 prepared by Ridge Design dated 2 March 2020.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum of $3,500 within 14 days of these orders.

3. The Appeal is upheld.

4. Development consent is granted to Development Application No. 609/2019 for a boundary adjustment between 1B Buist Street and 1 Smith Road, Yagoona and the change of use of an existing outbuilding (approved under CD-271/2018) to a secondary dwelling at 1B Buist Street, Yagoona, subject to the conditions of consent in Annexure A.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (86.7 KB)

Plans (5.32 MB)

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Decision last updated: 14 April 2020