Huang v Canterbury City Council

[2021] NSWLEC 1547

Land and Environment Court

New South Wales

Medium Neutral Citation:

Huang v Canterbury City Council [2021] NSWLEC 1547

Hearing dates:

Conciliation conference on 5 and 29 July 2021; 19 August 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

See orders at [11]

Catchwords:

APPEAL – development application – mixed used development comprising residential and business premises – conciliation conference – agreement reached – orders made

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 2.3, 2.5, 4.3, 6.1, 6.2, 6.4, Sch 1

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15

Environmental Planning and Assessment Regulation 2000, cll 55, 124

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

Apartment Design Guide, NSW Department of Planning and Environment, July 2015

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

Jin Hong Huang (Applicant)
Canterbury City Council (Respondent)

Representation:

Counsel:
J Koprivnjak (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Canterbury City Council (Respondent)

File Number(s):

2021/91342

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) for the demolition of existing dwellings and the construction of a five-storey mixed use development comprising 28 apartments and 1 business premises over basement car parking with associated excavation and landscaping (Proposed Development) on the land described as Lots 330 and 331 DP 13801 and known as 1 – 3 Weyland St Punchbowl (Site).

2. The development application was amended by the Applicant with the agreement of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The Applicant uploaded the amended application on the NSW Planning Portal on 1 September 2021 and the amended proposal was then filed with the Court on 3 September 2021.

3. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court’s jurisdiction.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

5. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 5 and 29 July and 19 August 2021. I presided over the conciliation conference.

6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 13 September 2021 and is supported by a Jurisdictional Statement prepared by the Applicant (and with which, the Court was informed, the Respondent agrees) which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

2. The Land is within Zone B5 Business Development under the Canterbury Local Environmental Plan 2012 (LEP). The Proposed development is for the purposes of a mixed use development comprising residential units, ground floor business premises and basement carpark with associated excavation and landscaping. Development for the purpose of residential accommodation is prohibited on land within that zone but is permitted by cl 2.5 and cl 1 of Sch 1 of the LEP. The Site comprises land identified on the Key Sites Map referred to in that clause. Accordingly, development for the purpose of residential accommodation is permitted with development consent as part of a mixed use development. The Dictionary of the LEP defines “mixed use development” as follows:

mixed use development means a building or place comprising 2 or more different land uses

3. I am satisfied that the Proposed Development, which comprises both residential accommodation and business premises is therefore permitted with development consent on the Site under cl 2.5 and cl 1 of Sch 1 of the LEP.

4. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with, the objectives of the B5 Business Development zone in the LEP. Those objectives include the following:

To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

To support urban renewal that encourages an increased use of public transport, walking and cycling.

5. The Proposed Development is consistent with those objectives.

6. The proposed development complies with the applicable development standard in the LEP relating to building height (cl 4.3). The applicable maximum building height is 18 m and the maximum height of the proposed development is 17.6 m. The LEP does not contain any other development standard that applies to the Proposed Development.

7. Clause 6.1 of the LEP deals with acid sulfate soils. An Acid Sulfate Soil Assessment prepared by JK Geotechnics dated 5 July 2021 accompanied the DA which concludes that there is low potential for acid sulfate soil materials to either occur at the Site or to be disturbed during the carrying out of the Proposed Development and, on that basis, that an acid sulfate soils management plan is not required for the Proposed Development.

8. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 6.2(3) of the LEP are satisfactorily addressed by the Geotechnical and Hydrogeological Report prepared by JK Geotechnics dated 5 August 2021.

9. Clause 6.4(3) of the LEP applies to the Land and provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development—

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

10. The DA includes detailed plans in relation to stormwater management entitled, Stormwater Drainage Design and General Notes Revision B (9 sheets) prepared by Global Project Engineers and dated 14 July 2021 and condition 14 of the agreed conditions of consent imposes additional obligations on the Applicant in relation to the design of the stormwater drainage system for the Proposed Development. I accept the agreed submission of the parties that the matters set out in cl 6.4(3) of the LEP are satisfactorily addressed by the amended application and proposed conditions of consent.

11. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. A remediation report comprising a Remediation Action Plan and Detailed Site Investigation has been prepared by JK Geotechnics dated 2 July 2021 which confirms that the Site can be made suitable for the proposed use.

12. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate 899409_07M, prepared by Jinhong Design & Constructions, dated 18 August 2021 was submitted with the amended DA. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met.

13. The proposed development includes an element defined as a residential flat building under State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and is subject to the provisions of that Policy. The DA is accompanied by a statement by Ian Basset, Registered Architect, confirming that he designed or directed the design of the development and explaining how the design quality principles set out in the Policy and the objectives in Parts 3 and 4 of the Apartment Design Guide have been achieved. Having regard to that statement, I am satisfied that the requirements of this Policy have been satisfied.

14. The Canterbury Development Control Plan 2012 applies to the Site and I accept the parties’ agreed submission that the Proposed Development either meets the relevant controls in that Plan or, if not, achieves the objectives of those controls.

15. The Council’s Statement of Facts and Contentions indicates that the development application was publicly advertised for a period of 21 days from 17 July 2018 to 8 August 2018. Two (2) submissions were received during the exhibition period. The matters raised by the objectors included the following: visual privacy/overlooking impacts from the proposed front balconies; overall height of the proposed development (6 storeys); the traffic generated during construction; insufficient parking proposed for residents; noise pollution resulting from construction; narrow street width and limited street parking/public transport options; proximity to Canterbury Road will exacerbate congestion; overpopulation of Canterbury Bankstown; oversaturation of the property market; and overshadowing impacts and subsequent devaluation of surrounding properties. I accept the parties’ agreed position that the amended DA and conditions of consent satisfactorily address the issues raised by the objectors to the extent that this is possible and reasonable.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. I make the following orders:

1. The Court notes that:

1. The Applicant has amended the development application with the consent of the Respondent Council.

2. The Applicant has uploaded the amended application on the NSW planning portal on 1 September 2021 comprising all the documents and plans set out in Conditions 2 and 3 of Annexure A.

3. The Applicant has filed the amended application with the Court on 3 September 2021.

4. The Respondent agrees to publish a notice of the development consent granted by the Court in relation to DA.286/2018 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders.

2. The Court orders that:

1. The applicant is to pay the respondents costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $3,000.00.

2. The appeal is upheld.

3. Development Consent is granted to DA 286/2018 for demolition of existing dwellings and construction of a five-storey mixed use development, comprising 28 apartments and 1 business premises, over basement car parking, with associated excavation and landscaping, at 1-3 Weyland Street, Punchbowl NSW 2196, subject to the conditions set out in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (270311, pdf)

Architectural Plans (4728608, pdf)

Landscape Plan (1111059, pdf)

Stormwater Plans (1793895, pdf)

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Decision last updated: 22 September 2021