O and H Architects v Canterbury-Bankstown Council

[2020] NSWLEC 1549

Land and Environment Court

New South Wales

Medium Neutral Citation:

O & H Architects v Canterbury-Bankstown Council [2020] NSWLEC 1549

Hearing dates:

Conciliation conference on 5 November 2020

Date of orders:

10 November 2020

Decision date:

10 November 2020

Jurisdiction:

Class 1

Before:

Gray C

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- 851/2019 seeking alterations and additions to an existing dwelling; Construction of a new two storey dwelling at the rear to form a detached dual occupancy development and associated Torrens title subdivision is approved subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy – conciliation conference – agreement reached – orders made

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

Category:

Principal judgment

Parties:

O & H Architects (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):

2020/136652

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the alterations and additions to an existing dwelling, and the construction of a new two-storey dwelling, to form a detached dual occupancy development with Torrens title subdivision at 140 Lakemba Street, Lakemba. The development application was refused by Canterbury-Bankstown Council (“the Council”) on 29 November 2019. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was held on 5 November 2020. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the application include, inter alia, the deletion of a swimming pool, changes to the fence details, the deletion of a laundry room for the new dwelling and changes to the internal layout of the new dwelling.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dual occupancy, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Canterbury Local Environmental Plan 2012 (“CLEP 2012”).

• The proposed development complies with the applicable development standards in the CLEP 2012.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of residential dwelling houses, it is unlikely to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. 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- 851/2019 seeking alterations and additions to an existing dwelling; Construction of a new two storey dwelling at the rear to form a detached dual occupancy development and associated Torrens title subdivision is approved subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (226584, pdf)

**********