Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council

[2020] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ghazi Al Ali Architect Pty Ltd v Canterbury Bankstown Council [2020] NSWLEC 1380

Hearing dates:

Conciliation conference on 10 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 2 in Annexure A.

(2)       The appeal is upheld.

(3)     Development application DA387/2018 seeking the demolition of existing structures and construction of a part 5, part 6 storey boarding housing development over basement car parking is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – appeal against refusal – conciliation conference – boarding house development – affordable rental housing – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012

Environmental Planning and assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

Category:

Principal judgment

Parties:

Ghazi Al Ali Architect Pty Ltd (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/113065

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Canterbury Bankstown Council (the Respondent) of Development Application No. DA387/2018 seeking the demolition of existing structures and construction of a part 5, part 6 storey boarding housing development over basement car parking at 263-267 Canterbury Road, Canterbury otherwise known as Lot 18 in DP 703437.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 10 August 2020. I presided over the conciliation conference.

3. Prior to 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 August 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. There are jurisdictional prerequisites contained in the provisions of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) applicable at the time, and the Canterbury Local Environmental Plan 2012 (CLEP).

6. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [13]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R4 High Density Residential zone as identified by the CLEP, which permits development for the purpose of a ‘Boarding house’ with consent.

2. The provisions of the R4 zone permit residential accommodation development that is consistent with the objectives of the zone, which are as follows:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

7. Clause 29 of the Affordable Housing SEPP, applicable at the time the DA was lodged, contains standards that, if complied with, cannot be used to refuse consent. I am satisfied that the proposed development complies with the relevant standards.

8. I am also satisfied that the provisions of cl 30 of the Affordable Housing SEPP are met and, on the basis of the streetscape analysis at drawing A-1030 Rev C, I am satisfied that the amended plans result in a development that is compatible with the character of the local area, as required by cl 30A of the Affordable Housing SEPP.

9. The Geotechnical Investigation Report prepared by ‘geo-technical engineering’, dated 23 August 2018, and reference to survey levels on the site, satisfies me that the provisions of cl 6.1 of the CLEP have been satisfied in respect of acid sulphate soils.

10. As the jurisdictional prerequisites to the grant of consent have been addressed I am 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, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

13. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 2 in Annexure A.

2. The appeal is upheld.

3. Development application DA387/2018 seeking the demolition of existing structures and construction of a part 5, part 6 storey boarding housing development over basement car parking is approved subject to the conditions in Annexure A.

…………………………..

T Horton

Commissioner of the Court

Annexure A (316294, pdf)

Architectural Plans (10795680, pdf)

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Decision last updated: 20 August 2020