KVP Industries Pty Ltd v Canterbury-Bankstown Council

[2021] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:

KVP Industries Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1297

Hearing dates:

Conciliation conference on 28 May 2021

Date of orders:

2 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   Leave is granted for the applicant to rely on amended plans and documents referred to as Annexure CN-1 of the affidavit of Mr Christopher Nehme sworn 25 May 2021.

(2) The applicant is to pay the respondent $3,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3)   The appeal is upheld.

(4)   Development Consent No. DA-393/2013 is modified in the term in Annexure A.

(5)   Development Consent No. DA-393/2013 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

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 (Building Sustainability Index) BASIX 2004

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Cases Cited:

Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245

Texts Cited:

Apartment Design Guide

Canterbury-Bankstown Council, Community Participation Plan

Category:

Principal judgment

Parties:

KVP Industries Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
C Nehme (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2020/277954

Publication restriction:

Nil

Judgment

Background

1. These proceedings are an appeal to the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of DA-393/2013/D (modification application) seeking consent to modify the approved shop top housing development (approved under DA-393/2013) (original consent) by the reconfiguration of levels and structural changes, resulting in two additional apartments with associated internal and external changes (proposed development) at 274-276 Canterbury Road, Canterbury (site).

2. The site consists of two allotments identified as Lot C in DP 359734 and Lot D in DP 359734.

3. Further architectural plans and documents were provided to the Council in May 2021 to reflect the agreed matters (amended application). The plans and documents which form part of the amended application are Annexure CN-1 to the affidavit of Mr Christopher Nehme sworn on 25 May 2021. The Court has power to grant leave to modify the modification application: Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245 at [38]-[51].

Original consent

4. On 22 September 2014, the Court approved DA-393/2013 for demolition of an existing warehouse/commercial development and the construction of a four storey, with partial 5^th floor level mixed use commercial and residential (shop top housing) development with three level basement parking, subject to conditions.

Section 4.55(2)(a) – Substantially the same development

5. The parties agree and I accept that the development after modification will be substantially the same development as that originally approved by the Court for the following reasons:

1. there is no substantive change to bulk and scale of the original development by the proposed modifications;

2. the use of the building, being mixed use, remains unaffected by the proposed modifications;

3. whilst there is an increase to the number of apartments, the number of bedrooms in the proposed development remains unaffected, being a reconfiguration from two 2x bedroom apartments to four 1x bedroom apartments;

4. the communal open space area in the proposed development is no less than the area proposed in the original consent;

5. the building separation in the proposed development does not encroach the setback any further than that in the originally approved development;

6. the reconfiguration of the apartment design increases the number of apartments that are naturally cross ventilated than that in the original development and this reconfiguration of the apartment design provides a better design outcome.

Section 4.15(1)(a)(i) – Relevant provisions of environmental planning instrument are satisfied

Canterbury Local Environmental Plan 2012 (‘CLEP’)

6. The Canterbury Local Environmental Plan 2012 (‘CLEP’) is the relevant local environmental planning instrument that applies to the site.

7. The site is zoned B5 Business Development under the CLEP. The proposed development is permissible with consent in the B5 zone.

8. The use and purpose of the proposed development remains unchanged, and the proposal continues to achieve the objectives of the zone being to provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

9. Clause 4.3 of the CLEP requires that height of the building is not to be greater than 18m. The original consent approved the building height at RL22.40 and RL22.53 (measured to top of the lift overrun). The proposed development proposes a lowered roof pitch which results in a lowering of the approved maximum building height.

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (‘SEPP 65’)

10. I am satisfied that the design quality principles and the Apartment Design Guide as required by cll 28(2) and 30(2)(a) of SEPP 65 have been adequately addressed in the following reports:

1. Reports prepared by Urbanesque Planning; and

2. SEPP 65 Design Verification Statement prepared by Nick Lycenko.

State Environmental Planning Policy (Building Sustainability Index) BASIX 2004

11. A BASIX Certificate (prepared by Max Brightwell dated 17 December 2020) has been provided and complies with all the relevant requirements.

12. The modification application was notified between 12 August 2020 and 1 September 2020 in accordance with the requirements of Canterbury Bankstown Council’s Community Participation Plan. No submissions were received in respect of that notification.

Environmental Planning and Assessment Regulation 2000 (‘EPA Regulation’)

13. Clause 50(1A) of the EPA Regulation requires that a development application for a residential flat building must be accompanied by a design verification statement from a qualified designer. This requirement has been satisfied by SEPP 65 Design Verification Statement prepared by Nick Lycenko.

Conditions of Consent

14. The parties have agreed on conditions of consent.

15. The parties submit and I accept that the conditions of consent are lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and relevant legal principles.

16. For the reasons outlined, I am satisfied that the parties’ decision is one that the Court can make in the proper exercise of its functions under s 4.16(1) of the EPA Act and as required by s 34 of the Land and Environment Court Act 1979 I am required to make orders reflecting the parties’ agreement.

Orders

17. Accordingly, the Court orders that:

1. Leave is granted for the applicant to rely on amended plans and documents referred to as Annexure CN-1 of the affidavit of Mr Christopher Nehme sworn 25 May 2021.

2. The applicant is to pay the respondent $3,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Consent No. DA-393/2013 is modified in the term in Annexure A.

5. Development Consent No. DA-393/2013 as modified by the Court is Annexure B.

…………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (112324, pdf)

Annexure B (201537, pdf)

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Decision last updated: 02 June 2021