Mirvac Homes (NSW) Pty Limited v Canterbury Bankstown Council

Case •

[2022] NSWLEC 1298

•

16 June 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Mirvac Homes (NSW) Pty Limited v Canterbury Bankstown Council [2022] NSWLEC 1298
Hearing dates: Conciliation conference on 16 May 2022
Date of orders: 16 June 2022
Decision date: 16 June 2022
Jurisdiction:Class 1
Before: Chilcott C
Decision:

Orders – see [20].

Catchwords:

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

Legislation Cited:

Bankstown Local Environmental Plan 2015, cll 2.3, 2.7, 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.4A, 6.11

Biodiversity Conservation Act 2016, Pt 7

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

Environmental Planning and Assessment Regulation 2000, cl 55

Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment

Land and Environment Court Act 1979, s 34

Marine Estate Management Act 2014

State Environmental Planning Policy No. 19 – Bushland in Urban Areas

State Environmental Planning Policy 55 – Remediation of Land

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, Ch 11, cl 6.8

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, Ch 4, cll 2.7, 2.8, 2.10, 2.11, 2.12, 4.6, Sch 1

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.121

Texts Cited:

Bankstown City Council, Development Engineering Standards, 2009

Bankstown Development Control Plan 2015

Canterbury Bankstown Community Participation Plan (November 2019)

Canterbury Bankstown Council, Section 94A Contributions Plan, 2009

Draft Bankstown Consolidated Development Control Plan

Draft Canterbury-Bankstown Local Environmental Plan 2021

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:Principal judgment
Parties: Mirvac Homes (NSW) Pty Limited (Applicant)
Canterbury Bankstown Council (Respondent)
Representation:

Counsel:
M Staunton (Applicant)
C Ireland (Respondent)

Solicitors:
Minter Ellison (Applicants)
Canterbury Bankstown Council (Respondent)
File Number(s): 2020/267231
Publication restriction: No

Judgment

  1. COMMISSIONER: Mirvac Homes (NSW) Pty Limited (the Applicant) has appealed the deemed refusal by Canterbury Bankstown Council (the Respondent) of its development application DA370/2020 (DA) (as finally amended) seeks consent for the stabilisation works along the Georges River foreshore (being Proposed Lot 4 under DA-1107/2019 and land under the M5 Motorway bridge over the Georges River), and remediation and environmental rehabilitation works on the Riverlands Golf Course Site (Development) at 56 Prescott Parade, 123 and 123A Raleigh Road, and 67, 67A, 80, 80A,90 and 100 Auld Avenue, and 265 Horsley Road Milperra, also known as Lot 10 DP 731859, Lot 1 DP 625013, Lot 1 DP 813006, Lots 231 and 232 DP 805826, Lots 23-27, 38-41 and 50-59 DP 7304, Lots 21 and 22 DP 749985, Lot 1 DP 813007 and Lot 30 DP 827142 (the Subject Site).

  2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

  3. The Proposed Development was notified and advertised for a period of 21 days from 10 June 2020 until 30 June 2020, in accordance with the requirements of the Canterbury-Bankstown Community Participation Plan. Three (3) submissions were received.

  4. On 14 July 2021, the Applicant was granted leave to rely on the amend plans and reports (Amended DA).

  5. The Amended DA was notified and advertised for a period of 28 days from 11 August to 7 September 2021, in accordance with the requirements of the Environmental Planning and Assessment Regulations 2000 (EPA Reg) and the Canterbury-Bankstown Community Participation Plan. Twenty-nine (29) submissions were received.

  6. The DA has been further amended with the consent of the Respondent to include the amended plans and additional documents that have arisen in relation to the lot layout and a joint report of the Parties’ traffic engineering experts in this matter (Further Amended DA).

  7. The Applicant’s Further Amended DA was uploaded onto the NSW Planning Portal on 15 May 2022, and a package of documents supporting the Applicant’s Further Amended DA was filed with the Court on 16 May 2022 (Final Amendment documentation).

  8. The Court notes that the Applicant’s Further Amended DA in this appeal:

  1. is one of four development applications concerning the redevelopment of land generally identified as the former Riverlands Golf Course site;

  2. together with the three other related applications, reflects the following amendments to the Applicant’s proposals for redevelopment of the Riverlands Golf Course site:

  1. the Applicant’s originally proposed approximately 14,100m2 of parklands would now provide total parklands with an area of approximately 24,600m2 representing an 74% increase in area of parklands provided as part of the redevelopment compared to the Applicant’s original redevelopment proposal, including:

  1. an area referred to as the Southern Park originally proposed with an area of 8,480m2 is now proposed to have an area of 19,350m2 (1.935 ha);

  2. an area referred to as the eastern park with an area of 1,114m2 remains unchanged;

  3. an area referred to as the central park with an area of 3,893m2 remains unchanged;

  1. a lot in the extreme northwest of the Riverlands Golf Course site remains unchanged with an area of approximately 623m2, and is zoned RE2 Private Recreation;

  2. some slight changes in the design of the central “J-shape” block resulting in the number of proposed allotments through subdivision of the former Riverlands Golf Course being reduced form the 187 allotments, as originally proposed, to 180 allotments;

  3. the proposed intersections of Keys Pde with a road identified as Road 1 have been realigned in line with the recommendations of the Parties’ expert traffic engineers;

  4. the subdivision layout has been amended to include:

  1. three lots (accommodating six dwellings) in place of a previously proposed north western park;

  2. better north/south vegetation connectivity between proposed Road 10 and the M5 corridor;

  3. the inclusion of a Linear Park with an area of 745m2;

  4. the addition of a park identified as Park 03 to provide a north/south pedestrian connection to provide separation between homes fronting proposed Roads 1 and 2;

  5. a southern part of the site that was previously proposed to be subdivided to into 54 lots (accommodating 96 dwellings) has been reduced to a subdivision with 42 lots (accommodating 77 dwellings);

  1. improved arboricultural outcomes, retaining an additional 37 trees, as documented in the Applicant’s revised tree retention plan contained in its March 2022 Amended Arboricultural Impact Assessment, and including:

  1. retention of a significant number of high and medium retention value trees, and no dead trees, within the Applicant’s now proposed and enlarged Southern Park;

  2. retention of the following trees which were previously proposed to be removed in Applicant’s original plans: Trees 91, 93, 95, 97-111, 145-149, 151-163, 165, 166, 168-172, 174, 175, 177, 178, 180-214, 216, 217, 216-229, B15, B16, B18 & B19.

  1. On 16 May 2022, the Parties participated in a s 34 conciliation conference and I presided over that conference. During the conference the Parties reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

  2. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection had been undertaken prior to the conciliation conference and:

  1. three objector representatives, who provided written submissions that were made available to the Court, made oral submissions during the site view:

  1. Ian G Bailey, on behalf of the NSW Bush Carers;

  2. Peter Mortimer, a private citizen adjoining the area; and

  3. Skye Virgin on behalf of Bankstown Bushland Society..

  1. objector representatives reiterated concerns in relation to:

  1. the protection of plant communities on the Subject Site, particularly the loss of old trees and the endangered species which used them as homes;

  2. the potential ecological impacts of the Proposed Development, including whether various plant communities had been correctly identified;

  3. the connectivity of the various plant communities across the Subject Site;

  4. the potential loss of the Cumberland Plain Woodland patches across the Subject Site; and

  5. the intensity of the development and its potential impact on species such as the Green and Golden Bell Frog.

  1. At the conciliation conference, undertaken via Microsoft Teams, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

  2. Under s 34(3) of the Land and Environment Court Act 1979 (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.

  3. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

Bankstown Local Environmental Plan 2015

(1) the provisions of the Bankstown Local Environmental Plan 2015 (BLEP) apply to development on the Subject Site, and in relation to this:

  1. a draft revision of BLEP was publicly exhibited in 2020 and is currently under review by the NSW Department of Planning, Infrastructure, and the Environment, but while this is proposed that the revised LEP would apply to the Subject Site in due course, it has not been made and its provisions dos not materially impact on the Applicant’s Further Amended DA;

  2. the Subject Site in this appeal is zoned R2 – Low Density Residential (in part), RE1 – Public Recreation (in part), RE2 – Private Recreation (in part) and SP2 – Road Infrastructure Facility (in part) under the provisions of cl 2.3 of BLEP, and the Parties agree, and I am satisfied, that regard has been had to the objectives in the R2, RE1, RE2 and SP2 zones in relation to the Applicant’s Further Amended DA for the purposes of clause 2.3(2) of BLEP;

  3. the provisions of cl 2.7 of BLEP provide that demolition is permissible with consent and in relation to this:

  1. the Parties have advised, and I am satisfied, that the impacts of demolition as proposed within the Applicant’s Further Amended DA have been considered; and

  2. the Parties’ agreed conditions of consent include conditions concerning the demolition works proposed by the Applicant in satisfaction of cl 2.7 of BLEP;

  1. the provisions of cl 4.1 of BLEP provide a minimum lot size restriction in relation to the subdivision of land on the Subject Site, but the Applicant’s Further Amended DA does not propose the creation of allotments and so the provisions of cl 4.1 have no application in this appeal;

  2. the provisions of cl 4.3 of BLEP in relation to building height has no application in relation to the Applicant’s Further Amended DA as this application is solely for the purpose of environmental protection works and remediation works and no buildings are proposed under this application;

  3. the provisions of subcll 4.4(2) and 4.4(2A) of BLEP in relation to Floor Space Ratio (FSR) provide a maximum FSR development standard for the Subject Site but, this is not applicable in this appeal as the only works proposed under the Applicant’s Further Amended DA is for bank stabilisation, revegetation and remediation works;

  4. clause 5.10 of BLEP in relation to heritage conservation aims to conserve the environmental heritage of Bankstown and the Applicant’s Final Amendments contain reports concerning Aboriginal Heritage Assessment and European Heritage Assessment, and

  1. the European Heritage Assessment confirms that there are no items listed within BLEP within the study area; and

  2. the Aboriginal Heritage Assessment confirms that there are no listed Aboriginal heritage items within the study area.

  1. clause 5.21 of BLEP in relation to flood planning prescribes certain requirements for development in a flood planning area and the Parties agree, and I am satisfied, that Applicant’s River Bank Stabilisation report prepared by Tooker and Associates has considered the matters at cl 5.21(3) of BLEP, and confirms that the Applicant’s Further Amended DA satisfies provisions of cl 5.21 of BLEP (formerly cl 6.3 of BLEP) including those in cl 5.21(2) of BLEP such that it:

  1. is compatible with the flood function and behaviour on the land; and

  2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; and

  3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood; and

  4. incorporates appropriate measures to manage risk to life in the event of a flood; and

  5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses;

  1. clause 6.1 of BLEP in relation to acid sulfate soils requires that the Applicant prepare an acid sulfate soils management plan in relation to its Proposed Development, and this has been provided as an accompanying document to the Applicant’s Further Amended DA;

  2. clause 6.2 of BLEP in relation to earthworks applies to the Applicant’s Further Amended DA, and the Applicant’s River Bank Stabilisation report prepared by Tooker and Associates along with the engineering plans the amended Statement of Environmental Effects within the Applicant’s Further Amended DA, and accompanying documentation, confirm the Applicant’s satisfaction of cl 6.2 of BLEP;

  3. clause 6.4 of BLEP in relation to biodiversity applies to the Applicant’s Further Amended DA because some of the Subject Site is identified as "Biodiversity" on the Terrestrial Biodiversity Map within BLEP, and the Parties agree, and I am satisfied, that the Applicant’s Final Amendments documentation, including its the Biodiversity Development Assessment Report prepared by Cumberland Ecology:

  1. confirms that the matters identified within subcl 6.4(3) of BLEP have been considered; and

  2. as required under the provisions of subcl 6.4(4) of BLEP the development is designed, sited and will be managed to avoid any significant adverse environmental impact, and to the extent that this has not been possible the Proposed Development, as further amended, has been designed, sited and will be managed to minimise that impact;

  1. clause 6.4A of BLEP in relation to riparian land and watercourses applies to the Applicant’s Further Amended DA because the Subject Site is identified as "Riparian Land" or a "Watercourse" under the provisions of BLEP, and in relation to this:

  1. the Final Amendment documentation and its Amended BDAR, confirm that the proposed bank stabilisation and remediation works will have a positive impact on riparian land and watercourses; and

  2. the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA complies with the provisions of cl 6.4A of BLEP;

  1. clause 6.11 of BLEP in relation to development on Riverlands Golf Course Site applies to the Applicant’s Further Amended DA, and the Parties agree, and I am satisfied, Applicant’s clause 6.11 statement contained within its Final Amendments documentation has addressed the relevant matters in relation to cl 6.11 of BLEP and demonstrated that the Applicant’s Further Amended DA has satisfied the objectives of subcl 6.11(2) and the requirements in subcl 6.3(3) of BLEP, concluding that:

  1. the development is consistent with the low density residential scale and character of the surrounding area;

  2. the development will not significantly impact on the efficiency and safety of the surrounding road network;

  3. the development of the site integrates with the road, pedestrian and cycle networks of the surrounding established Milperra neighbourhood;

  4. the development, including any lots created by the development, will be compatible with the topography of the site and integrate with the landform, vegetation and landscape of the site;

  5. the development is appropriate given the environmental capabilities of, and environmental constraints that affect, the site (including, but not limited to, flood risks, land contamination, acid sulfate soils and bushfire risks);

  6. the development will protect the cultural heritage values of the site and the scenic values of the surrounding waterways and riparian and biodiversity corridors;

  7. the development will protect and conserve the ecological communities and areas on the site, including through the enlargement of the so-called Southern Park to protect additional areas of Plant Community Type (PCT) 849, in the Applicant’s Further Amended DA, which enlarges the Southern Park and integrates the Proposed Development with the surrounding landform, vegetation and landscape of the Subject Site;

  8. adequate provision has been made for protecting and conserving hollow bearing trees on the Subject Site;

  9. any adverse impacts of stormwater on the site, or caused by stormwater runoff on adjoining properties, native vegetation, wetlands or waterways, are properly managed or mitigated; and

  10. that any lot created by the development will be compatible with the stormwater management measures on the site;

  1. the Parties also agree, and I am satisfied, that in relation to the objectives in subcl 6.11(2), the Applicant’s cl 6.11 statement demonstrates that:

  1. development on the Subject Site will reflect the low density residential character of the surrounding area;

  2. traffic generated by development of the Subject Site will not adversely affect the efficiency and safety of Henry Lawson Drive and surrounding local;

  3. the Proposed Development will protect and conserve the cultural heritage, ecological and habitat values of the Subject Site and the scenic values of the surrounding waterways and riparian corridors; and

  4. the Proposed Development will integrate with the landform, vegetation, overland flow paths and landscapes of the Subject Site;

Bankstown Development Control Plan 2015 (DCP)

(2) the provisions of Bankstown Development Control Plan 2015 (BDCP) applies to development on the Subject Site, and in relation to those provisions:

  1. the Parties have noted that a draft Bankstown Consolidated Development Control Plan, which was publicly exhibited until 5 March 2021 and which is currently under review, does not materially affect the assessment of the Applicant’s Further Amended DA; and

  2. the Parties advise, and I am satisfied, that:

  1. the provisions of BDCP that are primarily relevant to the Applicant’s Further Amended DA are those contained in Part A3 – Key Infill Development Sites, and particularly the provisions of cl 6.3 of Part A3;

  2. the Applicant’s Further Amended DA in this appeal is limited to certain bank stabilisation, revegetation and remediation works, and the provisions of cl 6.3 of Part A3 of BDCP principally concern the detailed subdivision of the land for residential use which is not the subject of this appeal; and

  3. the Applicant’s Further Amended DA satisfies the provisions of cl 6.3 of Part A3 of BDCP to the extent required; and

  4. the Applicant’s Further Amended DA has satisfied the provisions of section 4.15(1)(a)(iii) of the EP&A Act;

Bankstown City Council Development Engineering Standards 2009

(3) the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA can be approved having regard to the controls in the Bankstown City Development Engineering Standards 2009;

Canterbury Bankstown Council Section 94A Contributions Plan 2009

(4) the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA can be approved having regard to the provisions of Canterbury Bankstown Council Section 94A Contributions Plan 2009;

Biodiversity Conservation Act 2016

(5) the Parties agree, and I am satisfied, that:

  1. the Applicant’s Further Amended DA triggers the need for a biodiversity assessment report (BDAR) for the purposes of Pt 7 of the Biodiversity Conservation Act 2016 (BC Act); and

  2. having regard to the Applicant’s biodiversity assessment report prepared by Cumberland Ecology and provided within the Applicant’s Final Amendments documentation:

  1. the Applicant’s Further Amended DA satisfies the requirements of Pt 7 of the BC Act; and

  2. the Applicant’s Further Amended DA, if approved, will not have a serious or irreversible impact on biodiversity values for the purpose of the BC Act;

State Environmental Planning Policy (Transport and Infrastructure) 2021

(6) clause 2.121 within Chapter 2 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) (incorporating the provisions of the former State Environmental Planning Policy (Infrastructure) 2007) requires the development application to be referred to Transport for NSW (TfNSW) for approval; and

  1. following referral of the Proposed Development to TfNSW that agency on 26 November 2021, TfNSW provided its general terms of approval (GTAs) in accordance with the requirements of the Transport and Infrastructure SEPP; and

  2. those GTAs have been incorporated into the Parties’ agreed conditions of consent in this appeal;

State Environmental Planning Policy (Biodiversity and Conservation) 2021

(7) clause 6.8(1) within Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) (incorporating the provisions of the former State Environmental Planning Policy No. 19 – Bushland in Urban Areas) applies to land which adjoins bushland zoned or reserved for public open space purposes, and:

  1. the part of the Subject Site that is zoned RE2 Private Recreation adjoins bushland reserved for public open space purposes;

  2. the Parties have submitted, and I accept, that the Parties have considered the mandatory considerations in subcll 6.8(2)(c) to 6.8(2)(e) and the Applicant’s Further Amended DA has taken into account:

  1. the need to retain any bushland on the Subject Site;

  2. the effect of the proposed development on bushland zoned or reserved for public open space purposes and, in particular, on the erosion of soils, the siltation of streams and waterways and the spread of weeds and exotic plants within the bushland; and

  3. all other matters relevant to the protection and preservation of the adjoining bushland zoned or reserved for public open space purposes;

(8) the Applicant’s Further Amended DA is also subject to the provisions of Chapter 11 of SEPP B&C (incorporating the provisions of the former Greater Metropolitan Regional Environmental Plan No. 2 - Georges River Catchment), and the Parties agree, and I am satisfied, that:

  1. the Applicant’s Further Amended DA satisfies the aims, objectives and planning principles in the Chapter 11 of SEPP B&C relating to environmental protection, water quality and river flows; and

  2. the Applicant’s Further Amended DA satisfies the planning principles that examine the impact of development on the Georges River and its tributaries;

State Environmental Planning Policy (Resilience and Hazards) 2021

(9) the Applicant’s Further Amended DA is subject to the provisions of Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), and:

  1. in relation to cl 2.7 of this SEPP, to the extent that works are within an area of coastal wetlands or littoral rainforest under the Applicant’s Further Amended DA, those works are environmental protection works;

  2. in relation to cl 2.8 of this SEPP, the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA will not significantly impact on:

  1. the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest; or

  2. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

  1. in relation to cl 2.10 of this SEPP, the Parties agree, and I am satisfied, that the Applicant’s Further Amended DA is designed, sited and will be managed to avoid an adverse impact to:

  1. the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment;

  2. coastal environmental values and natural coastal processes;

  3. the water quality of a marine estate (within the meaning of the Marine Estate Management Act 2014), noting that the DA does not propose development on any of the sensitive coastal lakes identified in Sch 1 of this SEPP;

  4. marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms;

  5. existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

  6. Aboriginal cultural heritage, practices and places; and

  7. the use of the surf zone.

  1. in relation to cl 2.11 of this SEPP, the Parties agree, and I am satisfied, that the DA is designed, sited and will be managed to avoid an adverse impact to:

  1. existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability;

  2. overshadowing, wind funnelling and the loss of views from public places to foreshores;

  3. the visual amenity and scenic qualities of the coast, including coastal headlands;

  4. Aboriginal cultural heritage; practices and places; and

  5. cultural and built environment heritage.

  1. in relation to cl 2.12 of this SEPP, the Parties agree, and I am satisfied, that, to the extent that the works proposed occur within a coastal zone, the Applicant’s Further Amended DA is not likely to cause increased risk of coastal hazards on the Subject Site or other land.

(10) the Applicant’s Further Amended DA is subject to the provisions of Chapter 4 of SEPP R&H (incorporating the provisions of the former State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55), and

  1. in relation to cl 4.6 of SEPP R&H, the Parties submit, and I am satisfied, that:

  1. the Applicant’s Further Amended DA includes a detailed site investigation (DSI) report and a remediation action plan prepared by Sullivan Environmental within the Applicant’s Final Amendments documentation; and

  2. the Applicant’s DSI confirms that the Applicant’s Further Amended DA satisfies the requirements of cl 4.6 of SEPP R&H, noting that the Parties agree, and I accept that the Subject Site will be remediated before it is used for the purpose intended within the Proposed Development;

  1. The Parties agree, and I am satisfied, that the submissions of the objectors (see above at [10]) have been considered and the Proposed Development, as amended, can be approved.

  2. Having considered the advice of the Parties, provided above at [13], I agree that:

  1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

  2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied.

  1. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

  2. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

  3. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

  4. The Court notes:

  1. that the Applicant has amended Development Application No. DA-370/2020 with the agreement of Canterbury-Bankstown Council as the relevant consent authority, (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000;

  2. that the Amended Development Application has been lodged on the NSW planning portal on 15 May;

  3. that the Applicant has subsequently filed the Amended Development Application with the Court on 16 May 2022;

Orders

  1. The Court orders that:

  1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay those costs of the Respondent thrown away as a result of the Court allowing the Applicant to file the Amended Development Application as agreed in accordance with the letter from the Applicant to the Respondent dated 13 May 2022;

  2. The Appeal is upheld;

  3. Development Application No. DA-370/2020 for bank stabilisation works along the Georges River foreshore (being Proposed Lot 4 under DA-1107/2019 and under the M5 Motorway bridge over the Georges River), and remediation and environmental rehabilitation works on the Riverlands Golf Course Site at 56 Prescott Parade, 123 and 123A Raleigh Road, and 67, 67A, 80, 80A, 90 and 100 Auld Avenue, and 265 Horsley Rd, Milperra, also known as Lot 10 DP 731859, Lot 1 DP 625013, Lot 1 DP 813006, Lots 231 and 232 DP 805826, Lots 23–27, 38–41 and 50–59 DP 7304, Lots 21 and 22 DP 749985, Lot 1 DP 813007, Lot 30 DP 827142 is granted development consent subject to the conditions in the annexure "A".

………………………..

M Chilcott

Commissioner of the Court

(Annexure A) (358020, pdf)

**********

Decision last updated: 17 June 2022

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

13