JLS Developments Pty Ltd v Canterbury-Bankstown Council

[2021] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:

JLS Developments Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1583

Hearing dates:

Conciliation conference on 16 September 2021, final agreement filed 15 September 2021

Date of orders:

1 October 2021

Decision date:

01 October 2021

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the Development Application in a sum of $4,000, within 28 days of the making of orders disposing of these proceedings.

(2) The appeal is upheld.

(3) Consent is granted to Development Application No. 659/2020 for the demolition of all existing structures and the construction of a two-storey multi-dwelling development containing four dwellings with basement parking at 24 Claremont Street, Campsie, subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 4.6

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 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 (infrastructure) 2007

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

Texts Cited:

Canterbury Development Control Plan 2012

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021)

Category:

Principal judgment

Parties:

JLS Developments Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

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

File Number(s):

2020/331068

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 659/2020 (DA) by Canterbury-Bankstown Council (the Respondent). The DA sought consent for the demolition of all existing structures and the construction of a two-storey multi-dwelling development containing four dwellings with basement parking at 24 Claremont Street, Campsie (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 September 2021. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal, subject to conditions.

5. Whilst the amended proposal remains substantially the same as the original DA, a series of changes cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to streetscape character, building height, setbacks and parking, amongst other contentions.

6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended Development Application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the site, being the Applicant in these proceedings.

9. The parties agree, and I am satisfied, the Canterbury Local Environmental Plan 2012 (CLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development, characterised as multi-dwelling housing, is permissible with consent.

10. The parties agree, and I am satisfied, that all relevant provisions of the CLEP have been satisfied. In particular, the amended proposal does not breach the height of buildings development standard set out at cl 4.3 of the CLEP, nor the floor space ratio development standard set out at cl 4.4 of the CLEP.

11. The parties agree, and I am satisfied, that the amended proposal does not breach any other development standard in the LEP and consequently no written request is required under cl 4.6 of the CLEP.

12. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes. The site is currently occupied by a dwelling house. The amended proposal does not seek to alter the categorisation of land use. As such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed.

13. I am satisfied a BASIX certificate has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX certificates.

14. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the amended proposal may be granted consent and the final amended proposal is in the public interest.

15. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

Orders

16. The Court notes that:

1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the Development Application with the consent of the Respondent.

2. The Applicant has uploaded the amended Development Application to the NSW Planning Portal on 13 September 2021 comprising the documents and plans set out in Condition 2 of Annexure A.

3. The Applicant has filed the amended Development Application with the Court on 15 September 2021.

4. The Respondent agrees to publish a notice of the development consent granted in relation to DA-659/2020 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.

17. The Court orders that:

1. Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the Development Application in a sum of $4,000, within 28 days of the making of orders disposing of these proceedings.

2. The appeal is upheld.

3. Consent is granted to Development Application No. 659/2020 for the demolition of all existing structures and the construction of a two-storey multi-dwelling development containing four dwellings with basement parking at 24 Claremont Street, Campsie, subject to the conditions contained in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (247513, pdf)

Plans (2030897, pdf)

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Decision last updated: 01 October 2021