Perestrelo Investments Pty Limited v Canterbury-Bankstown Council

[2019] NSWLEC 1352

Land and Environment Court

New South Wales

Medium Neutral Citation:	Perestrelo Investments Pty Limited v Canterbury-Bankstown Council [2019] NSWLEC 1352
Hearing dates:	Conciliation conference on 26 July 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders below at [7]
Catchwords:	DEVELOPMENT APPLICATION – boarding house - 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 No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Perestrelo Investments Pty Limited (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: L Newcombe, Storey & Gough Lawyers (Applicant) J Corradini-Bird, Marsdens (Respondent)
File Number(s):	2018/373974
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a 2-storey boarding house containing 6 rooms and associated landscaping at 22 Dunstaffenage Street, Hurlstone Park. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal 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 arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held today, 26 July 2019. 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.

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 form this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties is met, for the following reasons:

• The development application was made with the written consent of Carlos and Rita Perestrelo, the owners of 22 Dunstaffenage Street, Hurlstone Park, being the land to which the development application relates.

• The proposed development is for the purpose of a “boarding house” as defined in the Dictionary to Canterbury Local Environmental Plan 2012 (“CLEP 2012”), which is a permissible use in accordance with the Land Use Table relating to Zone R3 Medium Density Residential in CLEP 2012, in which the land is located.

• The proposed development does not contravene any development standard in CLEP 2012 or any other applicable environmental planning instrument.

• The development application (as amended) was 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. Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated.

• Consideration has been given as to whether the design of the proposed development is compatible with the character of the local area as required by cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, on the basis of the content of the Statement of Environmental Effects lodged with the Class 1 Application.

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 rely on the following amended plans and documentation:

DWG NO.	DESCRIPTION	REV	DATE	PREPARED BY
17032DA01	Cover Sheet	C	18.04.2019	Kink Architecture
17032DA02	Existing/Demolition Plan	B	18.04.2019	Kink Architecture
17032DA03	Site/roof plan	D	14.05.2019	Kink Architecture
17032DA04	Ground floor plan	C	18.04.2019	Kink Architecture
17032DA05	First floor plan	D	14.05.2019	Kink Architecture
17032DA06	Elevations 1	D	14.05.2019	Kink Architecture
17032DA07	Elevations 2	D	14.05.2019	Kink Architecture
17032DA08	Sections	D	14.05.2019	Kink Architecture
17032DA09	Shadow Diagrams	C	18.04.2019	Kink Architecture
17032DA12	Streetscape Diagram	B	14.05.2019	Kink Architecture
L01	Landscape Planting Plan	B	02.05.2019	McIntosh & Phelps
L02	Landscape Lighting Plan	B	02.05.2019	McIntosh & Phelps
L03	Landscape Materials and Finishes	B	02.05.2019	McIntosh & Phelps
L04	Landscape Planting	B	02.05.2019	McIntosh & Phelps

DESCRIPTION	DATE	PREPARED BY
BASIX Certificate No. 1026249S_02	29 June 2019	Sustainability-Z Pty Ltd

2. 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 $4,500.00 within 21 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. 194/2018 for the demolition of existing structures and construction of a 2 storey boarding house containing 6 rooms with ground floor at –grade car parking for 3 cars (including 1x accessible space), 2 motorcycles and 2 bicycles, a communal open room and rear communal open space, and associated landscaping on the land at 22 Dunstaffenage Street, Hurlstone Park is approved subject to the conditions of consent at Annexure “A”.

……………………….

J Gray

Commissioner of the Court

Annexure A (265 KB, pdf)

Architectural Plans (2.65 MB, pdf)

Landscape Plans (6.18 MB, pdf)

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Decision last updated: 26 July 2019