Feng v Canterbury-Bankstown Council

[2020] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

Feng v Canterbury-Bankstown Council [2020] NSWLEC 1452

Hearing dates:

Conciliation conference on 21 September 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at Schedule 1, condition 2 and condition 7(a) in Annexure A.

(2)   The appeal is upheld.

(3)   Development application DA-1011/2019 seeking the demolition of secondary dwelling at the rear to form a detached dual occupancy and associated Torrens title subdivision at premises known as 3 Loftus Street Campsie, is approved subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Local Government Act 1993

Texts Cited:

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

Ji Feng (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

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

File Number(s):

2020/37875

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA-1011/2019 seeking the demolition of a secondary dwelling at the rear to form a detached dual occupancy and associated Torrens title subdivision at premises known as 3 Loftus Street, Campsie (the site) by Canterbury-Bankstown Council (the Council).

2. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties being a decision that the Court could have made in the proper exercise of its functions. It was discussed at a conciliation conference held between the parties on 21 September 2020 under s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided over the conciliation conference.

3. The agreement requires the imposition of deferred commencement conditions on the grant of development consent requiring the owner of the site to acquire from Council a vacant parcel of land known as 7B Lincoln Street that sits between the property’s western boundary and the road reserve of Lincoln Street. This Council land is classified “community land” under the Local Government Act 1993 and impedes direct access to the adjoining road (Lincoln Street) at the rear of the site. The purchase is necessary because without it the development does not comply with the requirement in Control C1 in C2.2.1 of the Council’s Canterbury Development Control Plan 2012 for dual occupancies to have a street frontage. Proposed Lot A has a frontage to Loftus Street and proposed Lot B presently does not have access to the adjoining road (Lincoln Street).

4. In all other respects the proposed lots have sufficient area and frontage to accommodate the proposed dwellings meeting development controls including building height, floor space ratio, setbacks and private open space and each lot has onsite parking subject to access to Lot 101 DP 1160208.

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. Having considered the amended application referred to in Schedule 1, condition 2 and condition 7(a) in Annexure A and the joint report of the parties’ town planners dated 14 September 2020, I am satisfied that there are no jurisdictional impediments to the grant of a conditional development consent. Noting that the acquisition referred to in the deferred commencement condition must be carried out within 5 years of the date of the consent otherwise it will not become operational. Accordingly, 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.

7. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the plans in the proceedings referred to at Schedule 1, condition 2 and condition 7(a) in Annexure A.

2. The appeal is upheld.

3. Development application DA-1011/2019 seeking the demolition of secondary dwelling at the rear to form a detached dual occupancy and associated Torrens title subdivision at premises known as 3 Loftus Street Campsie, is approved subject to the conditions in Annexure A.

…………………….

S Dixon

Senior Commissioner of the Court

Annexure A (222545, pdf)

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Decision last updated: 24 September 2020