Fernside Developments Pty Ltd v Canterbury-Bankstown Council

[2020] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fernside Developments Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1025
Hearing dates:	Conciliation conference on 5 November 2019
Date of orders:	17 January 2020
Decision date:	17 January 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The Appeal in proceedings no 2019/00150610 is upheld. (2)   Development application DA-539/2018 is approved, subject to the conditions in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – 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
Category:	Principal judgment
Parties:	Fernside Developments Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: J Garcia (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent)   Solicitors: Lionheart Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/150610
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant, Fernside Developments Pty Ltd, has appealed against the Council’s deemed refusal of a development application made pursuant to s 4.12 of the Environmental Planning and Assessment Act 1979 (EPA Act) for demolition and construction of a residential flat building at 1-5 Alfred Street, Clemton Park ( the site).

2. The appeal is brought under s 8.7 of the EPA Act.

3. The relevant facts and statutory controls are outlined in the Council’s Statement of Facts and Contentions (SOFC).

4. By way of background I note that the site is situated in Zone R4 High Density Residential pursuant to the provisions of Canterbury Local Environmental Plan 2012 (LEP). To the north of the site there is mixed use development in Clemton Park Village comprising a shopping village, supermarket, children’s play area, community centre, childcare centre, residential apartments and a “Bupa” aged care facility. Along the southern boundary, and separated by an existing 4.5m wide drainage canal, are single storey detached dwellings situated on land within Zone R3 Medium Density Residential under the LEP. Adjoining to the west of the site is 2 Harp Street which is located in Zone R4 High Density Residential under the LEP.

5. Together with the adjoining sites to the west (2-12 Harp Street) the site is the subject of a development consent (DA-516/2015) issued by the Court for “demolition of existing structures and construction of two four storey residential flat buildings providing a total of 92 apartments with associated landscaping, basement parking and strata subdivision”.

6. Demolition of some structures on the adjoining site at 2 Harp Street pursuant to DA-516/2015 has commenced.

7. On 14 December, the applicant lodged this DA. It was notified and before the Council determined the application the applicant lodged this appeal.

8. In accordance with the Court’s usual practice, the Registrar directed that the matter be referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 5 November 2019. I was the presiding Commissioner.

9. During an adjournment of that conference, the applicant sought and was granted leave by the Registrar to rely upon the following amended plans:

Drawing No.	Drawing Title	Rev	Dated	Prepared by
A1001	ROOF SITE PLAN	E	9/12/2019	Mackenzie Architects International
A1002	BASEMENT TWO PLAN	B	10/10/2019	Mackenzie Architects International
A1003	BASEMENT ONE PLAN	D	3/12/2019	Mackenzie Architects International
A1004	STORMWATER TRANSFER PLAN	E	9/12/2019	Mackenzie Architects International
A1005	GROUND FLOOR PLAN	D	09/12/2019	Mackenzie Architects International
A1007	SECOND FLOOR PLAN	B	19/11/2019	Mackenzie Architects International
A1008	THIRD FLOOR PLAN	B	30/10/2019	Mackenzie Architects International
A2001	NORTH + SOUTH ELEVATIONS	C	30/10/2019	Mackenzie Architects International
A2002	EAST + WEST ELEVATIONS	C	30/10/2019	Mackenzie Architects International
A2101	SECTIONS 01	C	30/10/2019	Mackenzie Architects International
A2102	SECTIONS 02	B	10/10/2019	Mackenzie Architects International
1	TITLE PAGE	C	10/12/2019	CONZEPT
2	LANDSCAPE PLAN	G	10/12/2019	CONZEPT
3	HARDSCAPE PLAN	G	10/12/2019	CONZEPT
4	DETAIL + SPECIFICATION	C	4/11/2019	CONZEPT
Drawing No. Drawing Title	Rev	Dated	Prepared by
BASIX CERTIFICATE 984208M_02	20/11/2019	BUILDING SUSTAINABILITY ASSESSMENTS
SITE REMEDIATION + VALIDATION WORKS LETTER	-	7/08/2019	EI AUSTRALIA
TRAFFIC LETTER	-	10/10/2019	TERRAFFIC PTY LTD

10. The Council now informs me that it is satisfied that the amendments to the plans have addressed all relevant contentions raised by the original application, and that the parties have now reached agreement as to the terms of a decision in the proceedings that would be acceptable to them.

11. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. In this instance, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended development application subject to conditions. The parties submit that there are no outstanding jurisdictional prerequisites that must be satisfied before this function can be exercised and I accept this to be the fact based on the documentary evidence filed with the Class 1 application and the amendments to the plans identified in the schedule attached to the s34 agreement.

12. 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.

13. The Court orders:

1. The Appeal in proceedings no 2019/00150610 is upheld.

2. Development application DA-539/2018 is approved, subject to the conditions in Annexure “A”.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (171 KB)

Architecture Plans 1-5 Alfred St, Clemton Park (4.46 MB)

Landscape Plans 1-5 Alfred St, Clemton Park (8.17 MB)

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Decision last updated: 17 January 2020