Ibrahim v Canterbury-Bankstown Council

[2019] NSWLEC 1299

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ibrahim v Canterbury-Bankstown Council [2019] NSWLEC 1299
Hearing dates:	Conciliation conference on 24 June 2019
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [23] below
Catchwords:	DEVELOPMENT APPLICATION – boarding house – 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 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	Antoinette Ibrahim (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: Dr S Berveling (Applicant)   Solicitors: Conomos Legal (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/120024
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Antoinette Ibrahim (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Canterbury-Bankstown Council (the Council) of Development Application No.205/2015 (the application).

2. The application the subject of the appeal sought consent under the EPA Act for the demolition of all existing structures and construction of a 2 storey boarding house containing 15 boarding rooms, a manager’s room and a basement on Lots 141 and 142 DP 1150558 and known as No. 22-22a Brighton Avenue, Croydon Park (the site).

3. The basement was to contain 4 car parking spaces, 3 motorcycle spaces, bicycle parking facilities, and bin storage. An accessible parking space was also provided at grade in front of the proposed boarding house.

4. The site is adjoined to the north by a residential flat building (RFB) and to the south by two semi-detached dwellings. Development opposite comprises factories and warehouses located in an industrial zone.

5. The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R4 High Density Residential zone in which the site is situated under the Canterbury Local Environmental Plan 2012 (the LEP).

6. The application was notified with 4 objections and a petition lodged raising a range of issues including concern with the impacts on traffic, parking and local amenity, the design, and the nature and management of the development.

7. Following lodgement of the appeal, the Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). However, as the parties could not come to an agreement the conciliation was terminated.

8. Nevertheless, the parties continued to confer and, in 15 February 2019, leave was granted by the Court to amended plans which sought to respond to the Council’s contentions. These plans formed part of the application as amended.

9. The amended application increased on-site car parking, from 4 to 8 spaces in the basement as well as providing an accessible space at grade. In addition, the gross floor area was reduced, setbacks increased and design changes undertaken to increase the amenity for future occupants and neighbours.

10. However, the Council advised that contentions remained. The amended application was notified and two objections were received.

11. The appeal was listed for hearing before me and expert reports filed in response to the retaining contentions. These reports indicated that a number of the contentions could be resolved subject to conditions of consent or amendments to the plans which were proposed in, or prepared for, the expert conferrals and attached to the expert reports.

12. On the basis of these amended plans and further conferral, the parties indicated that the Council’s contentions and those issues raised by objectors, to the extent that they were relevant considerations, had been resolved.

13. The parties therefore requested that the hearing be adjourned and the matter listed for a further s 34 conciliation conference at which to present an agreement. I presided over that conciliation at which an agreement under s 34(3) of the LEC Act was filed by the parties, and the hearing vacated.

14. 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.

15. In this regard, I am satisfied that the parties’ decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3). In arriving at this decision, I make no judgment on the merits of the development.

16. The Council’s original contentions included that there was a Planning Proposal to amend the LEP in terms of required site area controls for boarding houses, which the site did not meet. The Planning Proposal was a relevant consideration having received conditional Gateway determination and been publicly exhibited. However, in March 2019 the Council resolved to support the Planning Proposal subject to inclusion of a savings provision which had the effect of ‘saving’ the application from having to meet the proposed controls. Therefore it would not preclude consent being granted to the application.

17. In terms of other provisions of the LEP, the Council advised that the application as amended meets all of the required development standards, including height and FSR given the bonuses available under the ARH SEPP. Under the provisions of the ARH SEPP, the height, density and scale of the development cannot therefore be a basis for refusal. All other mandatory development standards of the ARH SEPP are complied with.

18. Further, the application cannot be refused under the ARH SEPP on the basis of parking if 0.5 spaces per room are provided, as is proposed in the amended application with the provision of 9 spaces on-site for 16 rooms (including the manager’s room).

19. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the ARH SEPP.

20. In this regard, the proposed boarding house is 2 storeys, similar to the height of residential development in the vicinity, and presents to the street as a substantial new dwelling house. The proposed access to the basement is screened with what appears as a garage door to a private dwelling house. Further, surrounding residential stock comprises a variety of dwelling styles including older cottages, RFBs and semi-detached dwellings. Finally, development opposite is of a different character being industrial in nature.

21. Given the amendments to the design, the site’s location and context, and that the height, bulk and scale and parking cannot be grounds for refusal in this instance, I consider that the proposed development will be compatible with the character of the local area and can be approved on that basis.

22. I also note that the required Certificate has been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

Orders:

23. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans:

Drawing No.	Drawing Title	Revision	Dated	Prepared by
A01	Site Plan	-	10 June 2019	Apex Intelligent Design
A03	Basement Parking	-	10 June 2019	Apex Intelligent Design
A03	Plans Ground	-	10 June 2019	Apex Intelligent Design
A04	Plans-First	-	10 June 2019	Apex Intelligent Design
A04	Plans- Roof	-	10 June 2019	Apex Intelligent Design
A05	Sections	-	10 June 2019	Apex Intelligent Design
A06	Elevations 1	-	10 June 2019	Apex Intelligent Design
A08	Demolition Plan and Sediment Control	-	15/11/2018	Apex Intelligent Design
A09	Site Analysis Plan	-	10 June 2019	Apex Intelligent Design
LS01	Landscape Plan	H	4 June 2019	Apex Intelligent Design
1012417M_04	BASIX Certificate	-	17 June 2019	Sustainability-Z Pty Ltd

2. Each party is to pay their own costs of the proceedings, with the exception of the costs order made pursuant to section 8.15(3) of the Land and Environment Court Act 1979 on 14 February 2019.

3. The appeal is upheld.

4. Development Application No.205/2015 for demolition of all existing structures and construction of a two storey boarding house containing fifteen (15) boarding rooms, a manager’s room and basement parking containing 8 x car parking spaces, 3 x motorcycle spaces, bin storage and an accessible space at grade on the land at Lots 141 and 142 DP 1150558 (known as No. 22-22a Brighton Avenue, Croydon Park) is approved subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (115 KB)

Plans (1.76 MB)

Decision last updated: 28 June 2019