Kar Group Australia Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1061

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

KAR Group Australia Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1061

Hearing dates:

Conciliation Conference on 27 November and 20 December 2023

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA-25/2023, as amended, for the demolition of existing buildings and the construction of a three-storey commercial building consisting of a gym and eight office spaces over three levels of basement carparking for 84 vehicles, landscaping and stormwater works on land legally described as Lot 2 Section 5 in DP192509, and known as 324 Hume Highway, Bankstown NSW 2200, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – construction of commercial building with basement parking and gym – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Roads Act 1993, ss 47, 138

Bankstown Local Environmental Plan 2015, cll 2.2, 2.3, 2.7, 4.3, 4.4, Dictionary

Canterbury-Bankstown Local Environmental Plan 2023, cl 1.8A

Environmental Planning and Assessment Regulation 2021, s 38

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Category:

Principal judgment

Parties:

KAR Group Australia Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/193037

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Canterbury-Bankstown Council (the Council) of DA-25/2023 (the Development Application) for the demolition of existing buildings and the construction of a three-storey commercial building with basement carparking, landscaping and stormwater works (the Proposed Development), on land legally described as Lot 2 Section 5 in DP192509, and known as 324 Hume Highway, Bankstown NSW 2200 (the Site).

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

3. At the conciliation conference and following further discussions between the parties, agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The Council considered that the amendment was not minor and the Applicant agreed to an order for costs thrown away pursuant to s 8.15(3) EPA Act. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development of the Site, as amended, subject to the conditions in Annexure A.

4. Section 34(3) of the LEC Act requires me to 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.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed jurisdictional statement (the Statement) provided to the Court on 12 February 2024. The statutory planning controls relevant to the site and the proposed development are listed in the Council’s Statement of Facts and Contentions.

6. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

7. The DA was made by FLDC Pty Ltd as agent for KAR Group Australia Pty Ltd (Applicant) on 1 February 2023.

8. The Site is owned by the Applicant and DO Development Pty Ltd in equal shares as tenants in common. Landowners’ consent to the DA was provided and is attached to the Class 1 Application.

Integrated Development

9. The DA was referred to Transport for NSW (TfNSW) as integrated development under s 4.47 of the EPA Act as the DA proposes works that would require approval under s 138 of the Roads Act 1993. On 28 February 2023, TfNSW provided its concurrence subject to conditions. TfNSW’s conditions have been incorporated into the parties’ Agreed Conditions.

Bankstown Local Environmental Plan 2015

10. The Canterbury-Bankstown Local Environmental Plan 2023 (2023 LEP) commenced on 23 June 2023. Clause 1.8A of the 2023 LEP provides that if a development application has been made before the commencement of that Plan in relation to land to which it applies and the application has not been finally determined before that commencement, the application must be determined as if that Plan had not commenced.

11. The DA was lodged with the Respondent on 1 February 2023 and has not been finally determined before the commencement of the 2023 LEP, pending the outcome of these proceedings. Therefore, the Bankstown Local Environmental Plan 2015 (2015 LEP) remains the relevant local environmental planning instrument that applies to the Site.

12. Compliance with the 2015 LEP is addressed generally in the Statement of Environmental Effects by HDC Planning dated 12 December 2022 (SEE), but specific provisions are addressed by the parties in the Statement as follows.

13. The Site is zoned B6 Enterprise Corridor in accordance with cl 2.2 and the relevant Land Zoning Map (Sheet LZN_005) of the 2015 LEP.

14. Demolition of a building may be carried out only with development consent, pursuant to cl 2.7 of the 2015 LEP.

15. “Office premises” are a nominate permissible use with consent in the B6 zone under the 2015 LEP, and a gym being a type of “recreation facility (indoor)” as defined by the Dictionary to the 2015 LEP is also permissible with consent as an innominate use in that zone.

16. Clause 2.3 of the 2015 LEP requires the consent authority to have regard to the objectives of the respective zone for a development. The objectives of the B6 Zone are as follows:

Zone B6 Enterprise Corridor

1 Objectives of zone

• To promote businesses along main roads and to encourage a mix of compatible uses.

• To provide a range of employment uses (including business, office, retail and light industrial uses).

• To maintain the economic strength of centres by limiting retailing activity.

• To provide for residential uses, but only as part of a mixed use development.

17. To the extent that the zone objectives are relevant, the Amended Application is consistent with the objectives of the B6 Zone. An assessment against the Zone objectives is set out in the SEE on page 14.

18. Pursuant to cl 4.3(2) of the 2015 LEP and the relevant Height of Buildings Map (Sheet HOB_005), the maximum height of building on the Site is 11m for a small portion of the Site with a frontage to the Hume Highway, and 23m for the remaining portion of the Site at the rear. However, as the Site identified on the relevant Height of Buildings Map is within “Area 2” and has an area of less than 5,000 m², the maximum building height permitted for the entire Site is 11m. The Amended Application proposes a three-storey building that complies with cl 4.3. A Section Plan and a 3D Building Height Limit plan demonstrating the compliance (see Drawings No. A-1401, Revision J dated 19 December 2023 and A-23, Revision I dated 8 December 2023) are contained in the architectural plans behind Tab 1 of the Amended Application.

19. Pursuant to cl 4.4 of the 2015 LEP and the relevant Floor Space Ratio Map (Sheet FSR_005), the maximum floor space ratio for a building on the Site is not to exceed 2:1. The Amended Application proposes a building with a floor space ratio of 1.88:1 and therefore complies with cl 4.4. A GFA Calculations Plan demonstrating the compliance (see Drawing No. A-2001, Revision J dated 18 January 2024) is contained in the architectural plans behind Tab 1 of the Amended Application.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

20. Section 4.6 of the Resilience and Hazards SEPP requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

21. The Site was subject to a previous approved development application (No. DA-24/2017) in 2018 for a three-storey mixed use development with residential units, which was approved by the Local Planning Panel. That application was accompanied by a Stage 1 Contamination Assessment from Ground Technologies for the Site, which concluded that laboratory test results were well below the assessment criteria and as such, indicate a low risk of contamination. The report also concludes that the site is suitable for development for Residential use.

22. To date, the Site remains unchanged since the grant of DA24-2017, and a single-storey brick office structure continues to occupy the Site. There are no immediate site conditions which would require remediation of the Site.

23. The Respondent has considered the previous contamination assessment carried out for the Site under DA-24/2017 and is satisfied that the Site is suitable for the proposed development for the purposes of s 4.6 of the Resilience and Hazards SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP)

24. Section 2.119 of the Transport and Infrastructure SEPP applies as the Amended Application has a frontage to the Hume Highway, being a SP2 Classified Road, which has been declared by the Minister administering the Roads Act 1993 under s 47 of that Act as a highway.

25. Section 2.119(2) requires that the consent authority must not grant consent to development unless it is 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.

26. Under the Amended Application, vehicular access for the proposed building is to be provided via Davis Lane to the rear of the Site.

27. A detailed traffic assessment can be found in the Traffic and Parking Impact Assessment (Ref. 220364.02FC) prepared by McLaren Traffic Engineering & Road Safety Consultants and dated 22 January 2024 that accompanied the Amended Application (Traffic Report). Further, the DA also contains a noise assessment prepared by Acoustic Consulting Engineers and dated 20 December 2022 (Acoustic Report).

28. Based on the Traffic Report and the Acoustic Report, the Respondent is satisfied that the Amended Application will provide practicable and safe vehicular access to the land by roads other than Hume Highway, and the safety, efficiency and ongoing operation of Hume Highway will not be adversely affected by the proposed development, and the proposed development includes appropriate measures to ameliorate potential traffic noise generated by Hume Highway within the Site.

29. The Agreed Conditions require all recommendations in the Traffic Report and the Acoustic Report to be implemented before the issue of a construction certificate.

Remaining matters in s 4.15(1)

30. The parties agree that the Amended Application can be approved taking into consideration the matters in s 4.15(1)(b) – (e) of the EPA Act. Matters relevant to paragraphs (b), (c) and (e) are considered generally in the SEE.

Notification

31. Council notified the DA for a period of 21 days from 15 February 2023 to 8 March 2023. No submissions were received during the notification period. The Amended Application was not renotified as Council formed the opinion that the changes made by the Amended Application will have no additional adverse impact on any adjoining or nearby properties.

Conclusion

32. For the above reasons, and taking into account the evidence before me, and my observations on site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

33. 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. 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.

Notations

34. The Court notes:

1. The Respondent has approved, as the relevant consent authority, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-25/2023 and to rely upon the following amended plans and documents (Amended Development Application), as filed with the Court:

Drawing No. & Revision		Title	Prepared by	Date
Architectural Plans
1	A-00	Title Page	Ghazi Al Ali Architect	undated
	A-1100 Rev I	Survey Plan		8 December 2023
	A-1201 Rev J	Basement 01, 02 & 03 Plan		19 December 2023
	A-1202 Rev L	Ground Floor Plan		1 February 2024
	A-1203 Rev I	Level 01 Plan		8 December 2023
	A-1204 Rev I	Level 02 Plan		8 December 2023
	A-1205 Rev I	Roof Plan		8 December 2023
	A-1301 Rev K	Elevations		22 January 2024
	A-1401 Rev J	Sections		19 December 2023
	A-2001 Rev J	GFA Calculations		18 January 2024
	A-23 Rev I	3D Building Height Limit		8 December 2023
Landscape Plans
2	2811.GD.01 Issue B	Landscape Plan	Greenland Design Landscape Architects	13 December 2023
	2811.GD.02 Issue B	Landscape Details & Specification		13 December 2023
Engineering Plans
3	SW01 Rev 04	Sediment and Water Management Plan	Australiawide Consulting Services	29 January 2024
	SW02 Rev 04	Storm Water Drainage Plan (Roof Plan)		29 January 2024
	SW03 Rev 04	Storm Water Drainage Plan (Ground Floor Plan)		29 January 2024
	SW04 Rev 04	Storm Water Drainage Basement 01 Plan		29 January 2024
	SW05 Rev 04	Storm Water Drainage Basement 02 Plan		29 January 2024
	SW06 Rev 04	Storm Water Drainage Basement 03 Plan		29 January 2024
	SW07 Rev 04	Detail Sheet-01		29 January 2024
	SW08 Rev 04	OSD Calculation and Section Detail		29 January 2024
Reports / documents
4	Traffic and Parking Impact Assessment (Ref.220364.02FC, Issue C-Final)		McLaren Traffic Engineering & Road Safety Consultants	22 January 2024
5	Combined Demolition/Construction & Operational Waste Management Plan (Rev 1A)		Archer Consultants	December 2023
6	Stage 1 Contamination Assessment		Ground Technologies	24 November 2016

Orders

35. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments made to the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA-25/2023, as amended, for the demolition of existing buildings and the construction of a three-storey commercial building consisting of a gym and eight office spaces over three levels of basement carparking for 84 vehicles, landscaping and stormwater works on land legally described as Lot 2 Section 5 in DP192509, and known as 324 Hume Highway, Bankstown NSW 2200, subject to the conditions at Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

**********

Amendments

23 February 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), correction is made to the revision number and date of Drawing No. A-1202 Ground Floor Plan in Condition 1 of Annexure A.

Decision last updated: 23 February 2024