Hammoud v Canterbury Bankstown Council

[2022] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hammoud v Canterbury Bankstown Council [2022] NSWLEC 1539

Hearing dates:

Conciliation conference 14 September 2022

Date of orders:

04 October 2022

Decision date:

04 October 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Appeal is upheld

(2) The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA-968/2021, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 28 days of these orders.

(3) Development consent is granted to Development Application No. DA-968/2021 for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works at 670-670A & 672-676 Canterbury Road, Belmore, subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new six storey mixed use development – amended plans – conciliation – agreement between the parties – orders made

Category:

Principal judgment

Parties:

Hussein Hammoud (First Applicant)
Said Hammoud (Second Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicants)
M Bonnano (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicants)
Canterbury Bankstown Council (Respondent)

File Number(s):

2022/51907

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA-968/2021) by the Canterbury Bankstown Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works. The development is proposed at 670-670A & 672-676 Canterbury Road, Belmore (Lot 8 DP 8847, Lot 7 DP 8847, Lot 5 DP 8847, Lot 6 DP 8847, Lot 4 DP 8847).

2. The appeal was subject to conciliation on 14 September 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). As a result of the discussions at the conciliation amended plans and documentation were prepared and agreement was reached between the parties. That agreed decision is that the appeal is upheld, the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was accompanied by owners consent of the owner of the subject land, as required by cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

2. The development application was publicly notified in accordance with the mandatory community consultation requirements of s 2.22 and Sch 1 of the EPA Act. Seven submissions were received by the Respondent. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act.

3. State Environmental Planning Policy Resilience and Hazards 2021 (SEPP RH) came into force on 1 March 2022 and transfers the provisions of State Environmental Planning Policy No 55 – Remediation of Land to the new instrument. Section 4.6 of SEPP RH nominates matters in relation to remediation of land that must be considered before the development application is determined. In determining the development, I have given consideration to whether the subject site is contaminated as required by s 4.6 of SEPP RH. The development application is accompanied by a Geotechnical Investigation Report of the Site which concludes that the site is suitable for the proposed development. By reference to this document, I have considered whether the land is contaminated in accordance with s 4.6 SEPP RH and I accept that the site will be suitable for the proposed development.

4. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Similarly State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) came into force on 1 March 2022, transferring the provisions of the former State Environmental Planning Policy (Infrastructure) 2007. The subject site has frontage to Canterbury Road, a classified road, as such s 2.119 of SEPP TI applies. It requires that a consent authority, prior to the grant of consent, be satisfied that:

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

6. In relation to (a) the vehicular access for the proposed development is provide from Joan Lane consistent with the requirements of the clause. Further, the development was referred to Transport for NSW who issued their concurrence subject to conditions. These conditions have been adopted into the draft conditions of approval.

7. The development application is accompanied by a Parking and Traffic Impact Assessment which assesses the potential impact of the proposed development on Canterbury Road and the road network. That report concludes that both Canterbury Road and the road network are capable of accommodating the limited traffic projected to be generated by the proposed development and that no adverse impacts of the type listed at (b) arise.

8. In relation to (c), and the requirements of s 2.120 of SEPP TI, the development application is accompanied by an acoustic report which confirms that appropriate measures will be taken to ensure that the stated LAeq levels are not exceeded in the final development. Appropriate conditions have been adopted into the draft conditions of approval to ensure compliance.

9. On the preceding basis I am satisfied that vehicular access to the land is provided by a road other than the classified road and the requirements of s 2.119 of SEPP TI are satisfied. Further, I find that the requirements of 2.120(3) in relation to achievement of appropriate sound levels are satisfied.

10. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned B5 Business Development. Development for the purposes of demolition and business premises are permitted with consent in the zone. Residential accommodation, as part of a mixed-use development, is permitted pursuant to Sch 1 of LEP 2012 as the site is within Area A of the Key Sites Map. In determining the development application, I have given consideration to the zone objectives.

11. The site is subject to a maximum height limit of 18m: cl 4.3 of LEP 2012. The proposed development has a maximum height of 19.86m and relies on the provisions of cl 4.6 of LEP 2012. The Applicant has prepared a written request seeking to vary the maximum height development standard. I have read the written request prepared by GAT & Associates dated 14 September 2022 and in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis that the objectives of the height control are met, notwithstanding the numeric variation (cl 4.6(3)(a) of LEP 2012): Wehbe v Pittwater Council (2007) 156 LGERA 446; NSWLEC 827. I am satisfied that the development is consistent with the achievement of the objectives of the height standard for the reasons detailed in the written request.

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of LEP 2012). In particular, I am satisfied that the first breaching element (the lift overrun) provides a benefit to the development of accessible access to the communal open space. Further, I accept that the second breaching element (part of the building fronting Canterbury Road) provides a benefit of contextual fit with existing and approved developments in this precinct of Canterbury Road as demonstrated in the written request.

3. For the reasons outlined in the written request, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of cl 4.3 of LEP 2012 and the objectives of the B5 Business Development zone.

4. Pursuant to cl 4.6(5) of LEP 2012, I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

5. I find that the states of satisfaction required by cl 4.6 of LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development, notwithstanding the breach of the height control.

12. As required by cl 6.2: Earthworks of LEP 2012 in determining the development application I have given consideration to the matters listed at subcl (3). In giving consideration to these matters I have been informed by the Detailed Site Investigation report submitted in support of the development application, prepared by Geo-Environmental Engineering titled dated 11 November 2021. On this basis I am satisfied that none of the factors listed at subcl (3) warrant the refusal of the application.

5. 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.

6. 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.

7. In making the orders, the Court also notes that:

1. The Applicant has amended Development Application No. DA-968/2021 with the agreement of the Respondent, Canterbury Bankstown Council as the relevant consent authority pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000 to rely on the following amended plans and documents:

1. Architectural Plans as prepared by Benson McCormack Architecture.

Sheet Number	Sheet Name	Current Revision	Current Revision Date
A-0001	Site Information Location Plans	02	29/08/2022
A-0002	Site Information Site Context	02	29/08/2022
A-0003	Site Information Site Photographs	02	29/08/2022
A-0004	Site Information Site Survey 1/2	02	29/08/2022
A-0005	Site Information Site Survey 2/2	02	29/08/2022
A-0006	Site Information Site Analysis – Constraints	02	29/08/2022
A-0007	Site Information Site Analysis – Opportunities	02	29/08/2022
A-0008	Site Information Site Plan	02	29/08/2022
A-0009	Site Information Demolition Plan	02	29/08/2022
A-0010	Site Information Project Summary 1/2	03	29/08/2022
A-0011	Site Information Project Summary 2/2	03	29/08/2022
A-0101	Plans – General Arrangement Basement 03 Floor Plan	03	29/08/2022
A-0102	Plans – General Arrangement Basement 02 Floor Plan	02	29/08/2022
A-0103	Plans – General Arrangement Basement 01 Floor Plan	04	06/09/2022
A-0104	Plans – General Arrangement Ground Floor Plan	04	06/09/2022
A-0105	Plans – General Arrangement Level 01 Floor Plan	03	29/08/2022
A-0106	Plans – General Arrangement Level 02 Floor Plan	03	29/08/2022
A-0107	Plans – General Arrangement Level 03 Floor Plan	03	29/08/2022
A-0108	Plans – General Arrangement Level 04 Floor Plan	03	29/08/2022
A-0109	Plans – General Arrangement Level 05 Floor Plan	03	29/08/2022
A-0110	Plans – General Arrangement Level Roof Plan	02	29/08/2022
A-0201	Elevations – West Elevation	02	29/08/2022
A-0202	Elevations – North Elevation	02	29/08/2022
A-0203	Elevations – East Elevation	02	29/08/2022
A-0204	Elevations – South Elevation	02	29/08/2022
A-0251	Sections – Section AA	02	29/08/2022
A-0252	Sections – Section BB	04	06/09/2022
A-0253	Sections – Section CC	03	29/08/2022
A-0254	Sections – Section DD	03	29/08/2022
A-0255	Sections – Section Access Ramp	03	06/09/2022
A-1001	Schedule – Door Window – Window – Door Schedule	02	29/08/2022
A-1301	Misc. DA Details Shadow Analysis	03	29/08/2022
A-1302	Misc. DA Details Solar Access – 21 June	02	29/08/2022
A-1303	Misc. DA Details Solar Access Diagrams	02	29/08/2022
A-1304	Misc. DA Details Cross Ventilation Diagrams	02	29/08/2022
A-1305	Misc. DA Height Plans	02	29/08/2022
A-1306	Misc. DA Details GFA Calculation	03	29/08/2022
A-1307	Misc. DA Details COS Calculation	02	29/08/2022
A-1308	Misc. DA Details Deep Soil Calculation	02	29/08/2022
A-1309	Misc. DA Details Storage Calculation 1/2	03	29/08/2022
A-1310	Misc. DA Details Storage Calculation 2/2	03	29/08/2022
A-1311	Misc. DA Details Finishes Schedule	02	29/08/2022
A-1312	Misc. DA Details Massing Study 1/2	02	29/08/2022
A-1313	Misc. DA Details Massing Study 2/2	02	29/08/2022
A-1314	Misc. DA Details Substation Chamber	02	29/08/2022
A-1315	Misc. DA Details Perspective	02	29/08/2022
A-1316	Misc. DA Details Future Urban Context Along Canterbury Road	02	29/08/2022
A-1317	Misc. DA Details Waste Rooms Layout	02	29/08/2022

2. Swept Path Assessment prepared by Stanbury Traffic Planning (Sheets 01/04) dated 6 September 2022.

3. BASIX Certificate No. 1258787M_03 prepared by GAT and Associates dated 14 September 2022.

4. NatHERS Certificate No. 0006796450 dated 14 September 2022.

5. NatHERS Certificates No. 0006796106-02, No. 0006796114-02, No. 0006796122-02, No. 0006796130-02, No. 0006796148-02, No. 0006796155-02, No. 0006796163-02, No. 0006796189-02, No. 0006796197-02, No. 0006796205-02, No. 0006796213-02, No. 0006796221-02, No. 0006796239-02, No. 0006796247-02, No. 0006796254-02, No. 0006796262-02, No. 0006796304-02, No. 0006796312-02, No. 0006796346-02, No. 0006796353-02, No. 0006796379-02, No. 0006796387-02, No. 0006796395-02, No. 0006796403-02, No. 0006796411-02, No. 0006796429-02, No. 0006796072-02, No. 0006796098-02, dated 14 September 2022.

6. Updated cl.4.6 variation request prepared by GAT & Associates dated 14 September 2022.

(collectively, the “Amended Development Application”).

2. The Amended Development Application was lodged on the NSW planning portal on 12 September 2022 and 14 September 2022.

3. The Applicant has subsequently filed the Amended Development Application with the Court on 13 September 2022 and supplemented the Amended Development Application on 15 September 2022.

8. The Court orders that:

1. The Appeal is upheld

2. The Applicant is to pay the Respondent’s costs thrown away by reason of the amendment of Development Application No. DA-968/2021, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $3,000 within 28 days of these orders.

3. Development consent is granted to Development Application No. DA-968/2021 for the demolition of the existing structures and construction of a six storey mixed use development with three levels of basement car parking, ground floor commercial tenancy, 28 residential apartments and associated landscaping and site works at 670-670A & 672-676 Canterbury Road, Belmore, subject to the conditions in Annexure A.

.…………………………

D M Dickson

Commissioner of the Court

Annexure A (294647, pdf)

**********

Decision last updated: 04 October 2022