Helweh v Canterbury-Bankstown Council

[2023] NSWLEC 1774

Land and Environment Court

New South Wales

Medium Neutral Citation:

Helweh v Canterbury-Bankstown Council [2023] NSWLEC 1774

Hearing dates:

Conciliation conference on 15 December 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA 329/2923 (as amended) for the demolition of existing structures and construction of a detached dwelling with basement and swimming pool at 4 Korbel Place, Georges Hall is determined by the granting of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.3, 2.7, 6.2

Canterbury-Bankstown Local Environmental Plan 2023, cl 1.8A

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Category:

Principal judgment

Parties:

Malik Helweh (First Applicant)
May Helweh (Second Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor)(Applicants)
M Bonanno (Solicitor)(Respondent)

Solicitors:
Storey & Gough Lawyers (Applicants)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/168819

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application DA-329/2023 (DA) for the demolition of existing structures and construction of a detached dwelling with a basement and swimming pool at 4 Korbel Place Georges Hall, a site legally described as Lot 315 in DP 239692 (site).

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 December 2023. I presided over the conciliation conference.

3. Based on amending plans, the parties reached an 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 development consent to the development application subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties provided the Court with an agreed statement of jurisdictional prerequisites (jurisdictional statement) on 7 December 2023. In regard to jurisdiction and having regard to this jurisdictional statement, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. In regard to Ch 4 (concerned with remediation of land) and s 4.6, the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that there is no reason to believe that the site may be contaminated. The reasoning is essentially based on the site’s long term history of residential use. In agreement with the parties, I am satisfied that the requirements of s 4.6 are met.

Bankstown Local Environmental Plan 2015

7. I accept the parties’ advice that the now repealed Bankstown Local Environmental Plan 2015 (BLEP) applies to the site as a consequence of savings and transitional provisions incorporated into Canterbury Bankstown Local Environmental Plan 2023 (CBLEP).

8. The site is situated within Zone R2 Low Density Residential under BLEP and development for the purpose of a dwelling house is permissible with consent pursuant to cl 2.3. Development for the purposes of demolition is permissible with consent pursuant to cl 2.7.

9. The parties advise the proposal does not breach any development standards, noting in particular those relating to floor space ratio and maximum wall height with which the proposal complies.

10. In relation to cl 6.2 and earthworks the parties advise that due consideration to relevant matters has occurred, mindful of a Site Classification Assessment provided with the application.

11. I accept the parties’ advice that there are no other matters of jurisdictional relevance under BLEP.

Other provisions of s 4.15(1) of the EPA Act

12. Clause 1.8A of CBLEP provides as follows:

If a development application has been made before the commencement of this plan in relation to land to which this plan applies and the application has not been finally determined before that commencement, the application must be determined as if this plan had not commenced.

13. In this instance there is no dispute that the DA was made but not finally determined before the commencement of CBLEP. As indicated at [7], the principle implication of cl 1.8A of CBLEP is to provide for the repealed BLEP to be the principal effective environmental planning instrument in relation to the assessment of the DA. However, there is also a pertinence here to s 4.15(1)(a)(ii) of the EPA Act and the need for consideration of “any proposed instrument…”. That is to say, CBLEP can be considered as a proposed instrument (in the terms of s 4.15(1)(a)(ii) of the EPA Act) given the provisions of cl 1.8A of CBLEP. This question has been attended to in the advice provided by the parties, with the parties advising that there are no significant or, in particular, jurisdictional implications arising in the evaluation of the DA through the consideration of CBLEP as a proposed instrument (agreed email advice from the parties dated 14 December 2023).

14. In regard to s 4.15(1)(d) of the EPA Act, the parties confirm that the DA was notified in accordance with requirements and that no objecting submissions were received (here I note the parties’ advice that par 25 of the jurisdictional statement, which had referred to certain objecting submissions, was incorrect and is to be set aside).

15. I accept the parties’ advice that no other jurisdictional considerations arise in this matter.

Conclusion

16. In accordance with the above findings I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that had been in dispute between the parties.

18. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations

19. The Court notes that:

1. Canterbury-Bankstown Council, as the relevant consent authority, has approved, under cl 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicants amending the development application DA-329/2023 the subject of these proceedings as shown in the following amended plans and details:

Architectural Plans by Campbell Hill Group P/L Revision N dated 21 November 2023
Drawing Number	Title
01	Front Perspective/Finishers
02	Con tents/Axon Renders
03	Notes/Requirements
04	Site Plan
05	Sediment Control Plan
06	Streetscape
07	Sun Study
08	Site Analysis
09	Demolition Plan
10	Cut/Fill Plan
11	Basement Plan
12	Ground Floor Plan
13	First Floor Plan
14	Elevations
15	Elevations
16	Sections
17	Roof Plan
18	FSR Calculation Plan
19	Swimming Pool Details
20	Window & Door Schedule
21	Ground Floor Overlay with Survey
Landscape Plan by Eco Design Landscape Solutions dated 20 November 2023
Driveway Longsection Revision C by Leading Engineers dated 10 November 2023
Site Classification Assessment by Australian Ground Sciences dated 13 September 2023
Civil Works Plans Revision A by Leading Engineers dated 7 July 2023
C-00A	General Notes
C-01A	General Notes
C-02A	Sediment & Erosion Plan
C-03A	Basement Drainage Plan
C-04A	Stormwater Drainage Plan
C-05A	Pump Details
C-06A	Stormwater Details
C-07A	Stormwater Details

2. The amending documentation has been filed with the Court on 28 November 2023.

Orders

20. The Court orders that:

1. The appeal is upheld.

2. Development Application DA 329/2923 (as amended) for the demolition of existing structures and construction of a detached dwelling with basement and swimming pool at 4 Korbel Place, Georges Hall is determined by the granting of consent, subject to the conditions set out in Annexure A.

P Walsh

Commissioner of the Court

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Annexure A

Decision last updated: 21 December 2023