Nouris v Canterbury-Bankstown Council

[2020] NSWLEC 1237

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nouris v Canterbury-Bankstown Council [2020] NSWLEC 1237
Hearing dates:	Conciliation conference on 29 May 2020
Date of orders:	02 June 2020
Decision date:	02 June 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders that: (1) The Applicant is to pay the Respondent’s costs in the sum of $1,000.00 within 28 days of this Order pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (2)   The appeal is upheld. (3)   Development Application No. 355/2018 seeking consent for demolition of existing structures and construction of a 2-storey boarding house with associated car parking at 70 Rawson Street, Wiley Park is granted subject to the conditions of consent annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT 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 (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Panagiotis Nouris (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	V Conomos (Solicitor) (Applicant) V Asumugha (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Hall & Wilcox (Respondent)
File Number(s):	2019/85467
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against the Council’s refusal of Development Application No. 355/2018 for demolition of existing structures and construction of a 2-storey 16 room boarding house with associated car parking at the rear. The street address is 70 Rawson Street, Wiley Park.

2. 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 29 May 2020. I presided over the conciliation conference.

3. At the conciliation conference, 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 development consent to the development application subject to conditions in Annexure A.

4. 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. 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 explained how the jurisdictional prerequisites have been satisfied for the following reasons:

1. in relation to the Canterbury Local Environmental Plan 2012 (“CLEP 2012”):

1. the development is for the purpose of a ‘boarding house’ which is a permissible use with consent in the R3 Medium Density Residential zone.

2. the development is below the maximum building height of 8.5 metres, and satisfies cl 4.3 of CLEP 2012.

3. the development is below the maximum FSR of 0.5:1 and satisfies cl 3.4 of CLEP 2012.

2. in relation to the State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”):

1. the subject site has been historically used for residential purposes, and thus not considered to be contaminated land.

3. in relation to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”):

1. the development meets the development standards of the SEPP ARH, and satisfies cll 29, 30 and 30A.

4. in relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:

1. a BASIX certificate was prepared and satisfied Schedule 1, cl 2A of the Environmental Planning and Assessment Regulation 2000.

5. owner’s consent was obtained and attached to the development application lodged with Council.

5. The Council informs me that it has considered the merit concerns raised by the objectors and that they have been satisfactorily dealt with by the redesign in the amended application. I accept that evidence.

6. 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.

7. The Court orders that:

1. The Applicant is to pay the Respondent’s costs in the sum of $1,000.00 within 28 days of this Order pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is upheld.

3. Development Application No. 355/2018 seeking consent for demolition of existing structures and construction of a 2-storey boarding house with associated car parking at 70 Rawson Street, Wiley Park is granted subject to the conditions of consent annexed hereto and marked “A”.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (281705, pdf)

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Decision last updated: 02 June 2020