Rahme v Canterbury-Bankstown Council

[2023] NSWLEC 1639

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rahme v Canterbury-Bankstown Council [2023] NSWLEC 1639

Hearing dates:

Conciliation conference on 23 and 24 October 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended application in accordance with the documents listed at [9(1)].

(2)   The appeal is upheld.

(3)   Development Application No. DA-985/2022 for the conversion of an approved outbuilding to a single-storey secondary dwelling to the rear of Dwelling B of an approved dual occupancy development, at 212 William Street, Yagoona, Lot 25 DP 9332, is determined by the grant of consent subject to conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – carrying out of works to outbuilding and change of use to secondary dwelling – conciliation conference – agreement reached – orders made

Legislation Cited:

Bankstown Local Environmental Plan 2015

Canterbury-Bankstown Local Environmental Plan 2023, cl 1.8A

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

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174

Category:

Principal judgment

Parties:

Charbel Rahme (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
H Irish (Applicant)
A Jucha (Respondent)

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

File Number(s):

2023/180274

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the carrying out of works to an existing outbuilding at 212A William Street, Yagoona, and for its use as a secondary dwelling. The development application was refused by the respondent on 23 January 2023. The applicant appeals against that decision 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 [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The existing outbuilding was initially approved as an entertainment area in the development consent that was granted for the construction of a dual occupancy and the subdivision of land. The land has now been subdivided and a principal dwelling is located on the site, and a building information certificate has been issued for the outbuilding as presently constructed. The proposed development is for the carrying out of construction works within the outbuilding and a new external wall within what has been constructed, with no change to the roof and external walls that are presently constructed.

3. 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 commenced on 23 October 2023. I presided over the conciliation conference.

4. 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 agreement is reflected in a signed agreement provided on 25 October 2023, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendment increases the size of the private open space of the principal dwelling and also provides additional landscaping detail.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on the Jurisdictional Prerequisites. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in paragraph 9 below. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. 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 secondary dwelling, which is permissible with development consent in the R2 Low Density Residential zone in which the site is located, pursuant to the Bankstown Local Environmental Plan 2015 (BLEP). The BLEP continues to apply to the development application pursuant to the savings provision in cl 1.8A of the Canterbury-Bankstown Local Environmental Plan 2023.

• The proposed development does not result in a breach of the applicable development standard in the BLEP for floor space ratio (0.5:1).

• The proposed development does not alter the height of the outbuilding or any aspect of the wall height, and does not include any works that breach the development standards for height of building or wall height. It is therefore not a development for a building that exceeds the maximum wall height or that contributes to altering the wall height of the existing building. Accordingly, consistent with the decision of Duggan J in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174, there is no breach of either development standard by the proposed development and a written request pursuant to cl 4.6 of the BLEP is not required.

• Consistent with the requirements of s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the development application is accompanied by a BASIX certificate dated 19 October 2023.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated.

• The development application was publicly notified from 2 December 2022 until 14 December 2022, and there were no submissions received.

7. 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)).

8. 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.

9. The Court notes that:

1. Canterbury Bankstown Council, the Respondent, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA-985/2022 in accordance with the following documents:

1. Revision D Architectural Plans, prepared by INHAUS Design Pty Ltd, dated 24 October 2023.

2. An amended BASIX Certificate, No. 1373130S, prepared by Certified Energy 1, dated 19 October 2023.

2. The Applicant has filed the amended plans and updated BASIX certificate with the court.

10. The Court orders that:

1. Leave is granted to the applicant to rely on the amended application in accordance with the documents listed at [9(1)].

2. The appeal is upheld.

3. Development Application No. DA-985/2022 for the conversion of an approved outbuilding to a single-storey secondary dwelling to the rear of Dwelling B of an approved dual occupancy development, at 212 William Street, Yagoona, Lot 25 DP 9332, is determined by the grant of consent subject to conditions of consent in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (260713, pdf)

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Decision last updated: 27 October 2023