MY & OY Pty Ltd v Canterbury-Bankstown Council

[2022] NSWLEC 1721

Land and Environment Court

New South Wales

Medium Neutral Citation:

MY & OY Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1721

Hearing dates:

Conciliation conference on 18 October 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs, pursuant to section 8.15(3) of the Environmental Planning and       Assessment Act 1979, in the agreed amount of $3,000.
(2) The Appeal is upheld.
(3) Development Application No. DA-171/2022, as amended, for the demolition of the existing structures and construction of a two-storey multi-dwelling development containing three dwellings and associated works at 35 Gould Street, Campsie, NSW 2194 being Lot 174 on Deposited Plan 3846, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling development – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15, 8.7
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Canterbury Local Environmental Plan 2012, 6.1

Texts Cited:

Canterbury Development Control Plan 2012

Category:

Principal judgment

Parties:

MY & OY Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

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

Solicitors:
Conomos Legal (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2022/184663

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by MY & OY Pty Ltd (the Applicant) against the deemed refusal of Development Application No. DA-171/2022 by Canterbury-Bankstown Council (the Respondent).

2. The Development Application is for the demolition of the existing structures and construction of a two-storey multi-dwelling development containing three dwellings and associated works. The proposed development is to be undertaken at 35 Gould Street, Campsie, NSW 2194 being Lot 174 on Deposited Plan 3846 (the Site).

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 18 October 2022.

4. At the conciliation conference, the parties reached an in-principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The conciliation process was adjourned to allow the parties to finalise agreements. The proposed decision was to grant Development Consent to the Development Application subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and material that they considered resolved the contentions before the Court. The applicant lodged the amended application on the NSW Planning portal and these amendments were accepted by Council.

6. The amended application included, but is not limited to, the following relevant amendments described by the applicant:

“1. Proposed driveway was amended as per the traffic engineer’s specification, and a planter box of a maximum height of 900mm is proposed.

2. Communal Bin storage room removed, and individual bin closure is proposed for each dwelling.

3. The main entrance of Unit 02 is relocated away from the existing bus stop and seating bench, and the internal layout is amended accordingly.

4. Concrete lid over the driveway and a flat roof over the basement egress is proposed to reduce the uncovered areas per the stormwater engineer’s suggestion.

5. Internal layout and POS of Unit 03 is amended to reduce the building height.

6. Unit entry and internal layout of Unit 01 amended per access consultant’s comments.

7. Privacy screens proposed along the north-western façade to minimize privacy issues.

8. Roof design is amended to reduce the development's bulkiness and building height.

9. Canopy trees along Redman St are proposed per the council’s comments and the landscape architect’s specifications.”

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

1. The Site is located in the R4 – High Density Residential Zone under the Canterbury Local Environmental Plan 2012 (CLEP 2012). The proposed development of multi-dwelling housing is permissible in the zone. In determining the Development Application, I have had regard to the objectives of the zone.

2. Clause 6.1 to CLEP 2012, relating to acid sulfate soils, has been satisfied by the submission by the applicant of an acid sulfate soils report dated 4 October 2022 and prepared by Geosyntech Consultants Pty Ltd. This report concluded that it is unlikely that there is acid sulfate soil on the Site and that an Acid Sulfate Soil Management Plan is not required for the land.

3. The Development Application was placed on exhibition for a period of 14 days from 5 April 2022 until 19 April 2022, in accordance with the requirements of Part A3 of the Canterbury Development Control Plan 2012 and the Canterbury Community Participation Plan. Three submissions were received.

4. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (the Resilience & Hazards SEPP). As outlined in the Statement of Environmental Effects at p 19, the historic use of the land, the subject of the Development Application, has been residential. The Council has reviewed its historical files and confirms that the proposed use is acceptable in the context of the Resilience & Hazards SEPP.

10. 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’ agreement.

11. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

12. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is to pay the Respondent’s costs, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $3,000.

2. The appeal is upheld.

3. Development Application No. DA-171/2022, as amended, for the demolition of the existing structures and construction of a two-storey multi-dwelling development containing three dwellings and associated works at 35 Gould Street, Campsie, NSW 2194 being Lot 174 on Deposited Plan 3846, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

……………………….

Stuart Harding

Acting Commissioner of the Court

Annexure A (294642, pdf)

**********

Decision last updated: 21 December 2022