Kassira Pty Ltd v Canterbury-Bankstown Council

[2020] NSWLEC 1404

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kassira Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1404

Hearing dates:

Conciliation conference on 24 and 25 August 2020

Date of orders:

1 September 2020

Decision date:

01 September 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

Proceedings 2018/374675

Refer to orders at [9]

Proceedings 2020/40605

Refer to orders at [10]

Catchwords:

APPEALS – modification application concerning operation of a civil engineering works depot – development application for an acoustic wall – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Kassira Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

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

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2018/374675; 2020/40605

Publication restriction:

No

Judgment

1. COMMISSIONER: Two appeals are before the Court concerning premises at 17 Bryant Street, Padstow. In proceedings 2018/374675, the appeal concerns an application to modify development consent 1469/2015 by modification to the conditions of consent for the operation of a civil engineering works depot. Following the refusal of the application by the Council on 27 July 2018, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) (“the modification appeal”). In exercising the functions of the consent authority on the modification appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. In proceedings 2020/40605, the appeal concerns a development application for the construction of an acoustic wall on the western and part of the southern boundaries of the site, and the introduction of a storage area (“development appeal”). Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of EPA Act. In exercising the functions of the consent authority on the development appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The final orders in the two appeals, outlined in [9] and [10] below, are made as a result of agreements between the parties that were reached at a conciliation conference.

3. 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 24 and 25 August 2020 in both matters. I presided over the conciliation conference.

4. Following the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each proceedings that was acceptable to the parties.

5. In the modification appeal, the decision agreed upon is for leave to be granted to amend the modification application, and for the grant of the modification application resulting in modified conditions of development consent, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that all of the preconditions to the exercise of power in s 4.55(2) are met. Specifically, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that it is confined to modifying aspects of the operation of the civil engineering works depot, including parking, the movement of trucks, and storage. Further, the modification application was notified as required and the submissions made by local residents have been considered.

6. In the development appeal, the decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. I am satisfied that this is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as the building of the acoustic wall is for the purpose of a permissible use that is currently taking place on the site (pursuant to the consent modified by the modification appeal). Further, there is no breach of any development standards in any applicable planning instrument, and there are no jurisdictional preconditions identified by the parties that need to be satisfied prior to the grant of development consent.

7. Having reached the state of satisfaction that the decision in each appeal is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires that I “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreements between the parties, I was not required to make, and have not made, an assessment of the merits of the applications against the discretionary matters that arise pursuant to an assessment under s 4.55(3) and s 4.15(1) of the EPA Act.

Proceedings 2018/374675

9. The Court orders:

1. Leave is granted to the Applicant to amend the modification application and rely on the following plans and documents:

1. Drawing No. 101 (Issue C) prepared by Ridge Design dated 11 March 2020.

2. Drawing No. 101A (Issue C) prepared by Ridge Design dated 11 March 2020.

3. Drawing No. 101B (Issue C) prepared by Ridge Design dated 11 March 2020.

4. Amended Environmental Noise Assessment (Report Number 6594 – 3.1R Rev B) prepared by Day Design Pty Ltd dated 9 July 2020.

2. The appeal is upheld.

3. Approval is granted to Modification Application DA-1469/2015/1 for the modification of Development Consent DA-1469/2015, which is now subject to the consolidated, modified conditions of consent in Annexure A.

Proceedings 2020/40605

10. The Court orders:

1. Leave is granted to the Applicant to amend the development application and rely on the following plans and documents:

1. Drawing No. 101 (Issue C) prepared by Ridge Design dated 11 March 2020.

2. Amended Environmental Noise Assessment (Report Number 6594 – 3.1R Rev B) prepared by Day Design Pty Ltd dated 9 July 2020.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA-1002/2019 for the construction of an acoustic wall, varying in height from 4.3 to 5.8m and setback 1.0-2.0m from the western and part of the southern boundaries of the site with landscaping in the setback and the introduction of a storage area adjacent to the existing built form towards the front (north-western) portion of the site with a 1.8m high acoustic wall along the western side of the proposed storage area, subject to the conditions of consent in Annexure A.

……………………..

J Gray

Commissioner of the Court

Proceedings 2018/374675

Annexure A (293238, pdf)

Proceedings 2020/40605

Annexure A (207575, pdf)

Plans (1079834, pdf)

**********

Decision last updated: 01 September 2020