Katcorp Developments Pty Ltd v Canterbury Bankstown Council

[2021] NSWLEC 1062

Land and Environment Court

New South Wales

Medium Neutral Citation:

Katcorp Developments Pty Ltd v Canterbury Bankstown Council [2021] NSWLEC 1062

Hearing dates:

Conciliation conference held on 4 and 16 December 2020 and 19 January 2021

Date of orders:

10 February 2021

Decision date:

10 February 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.

(2) The appeal is upheld.

(3) Development application DA-359/2019 for the demolition of existing structures and erection of a multi dwelling housing development comprising 9 dwellings over basement parking at premises known as 75-79 Eighth Avenue, Campsie is approved subject to the conditions in Annexure A.

(4) The Applicant is to pay the Respondent’s s 8.15(3) costs thrown away in the proceeding in the agreed amount $4,000.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing – conciliation conference – agreement between the parties

Legislation Cited:

Canterbury Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Canterbury Development Control Plan 2012

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020)

Category:

Principal judgment

Parties:

Katcorp Developments Pty Ltd (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Bankstown City Council (Respondent)

File Number(s):

2020/156281

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 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 DA 359/2019. The application sought consent for the demolition of existing structures and construction of multi-dwelling housing including basement car parking at 75-79 Eighth Avenue, Campsie.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 December 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams however a site view was undertaken prior to commencement of the conciliation conference.

4. Following the original 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. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council’s Statement of Facts and Contentions filed on 16 July 2020.

5. 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 development application.

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

7. In that regard, the Parties agree, and I am satisfied, Canterbury Local Environmental Plan 2012 (LEP) is the relevant environmental planning instrument. The site is zoned R4 High Density Residential, and the amended proposal is permissible with consent.

8. The proposal complies with all of the relevant development standards in Part 4 of the LEP.

9. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation area (cl 5.10). It is not subject to bushfire hazard (cl 5.11) or identified as affected by acid sulfate soils (cl 6.1).

10. The site is not flood prone (cl 6.3) and stormwater issues have been satisfactorily addressed and the Council has imposed consent conditions to reflect its requirements.

11. The Council has not identified any contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land.

12. There are no draft planning proposals that apply to the land.

13. The evidence of the Council is that the development is consistent with the provisions and objectives of the Canterbury Development Control Plan 2012 (DCP) and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission.

14. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent.

15. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed.

16. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council.

17. Accordingly, I am satisfied that the proposal is in the public interest.

18. 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.

19. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.

2. The appeal is upheld.

3. Development application DA-359/2019 for the demolition of existing structures and erection of a multi dwelling housing development comprising 9 dwellings over basement parking at premises known as 75-79 Eighth Avenue, Campsie is approved subject to the conditions in Annexure A.

4. The Applicant is to pay the Respondent’s s 8.15(3) costs thrown away in the proceeding in the agreed amount $4,000.

…………………………………

Sue Morris

Acting Commissioner of the Court

Annexure A (234696, pdf)

Plans (11044895, pdf)

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Decision last updated: 11 February 2021