Refai v Canterbury Bankstown Council

[2020] NSWLEC 1680

Land and Environment Court

New South Wales

Medium Neutral Citation:

Refai v Canterbury Bankstown Council [2020] NSWLEC 1680

Hearing dates:

Conciliation Conference on 15 December 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA-163/2018, as amended, for demolition of the existing buildings and associated structures and the construction of a five storey residential flat building over two levels of basement carparking on land identified as Lots 29, 30 and 31 in Deposited Plan 10105 and known 599 – 603 Canterbury Road Belmore be approved subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – conciliation – agreement between the parties – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Building Sustainability Index) BASIX 2004

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Ahmad Refai (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2019/273280

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Respondent of Development Application No. DA-163/2018, as amended, for demolition of the existing buildings and associated structures and the construction of a five storey residential flat building over two levels of basement carparking on land identified as Lots 29, 30 and 31 in Deposited Plan 10105 and known as 599 – 603 Canterbury Road Belmore (Site).

2. On 15 December 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act).

3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application and to grant development consent.

4. On 15 December 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle.

5. The amendments to the plans, together with additional material provided by the Applicant to the Council addressed the Council’s contentions.

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

7. The parties’ agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The parties have identified the jurisdictional matters about which I need to be satisfied. I concur with the parties’ submission that I should be satisfied as to such matters having regard to the documents which have been provided to the Court.

8. In particular, I note:

1. The Site is zoned R4 ‘high density residential’ under Canterbury Local Environmental Plan 2012 (CLEP 2012) and development for the purposes of a residential flat building is permissible in the zone.

2. The objectives of the zone have been taken into account as required by cl 2.3(2) of CLEP 2012.

3. There are no non-compliances with any development standards in CLEP 2012 including height (cl 4.3) and floor space ratio (cl 4.4).

4. Clause 6.2 of CLEP 2012 (Earthworks) has been addressed.

5. As to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), having regard to the historic use of the land for dwelling houses, there is no reason to suspect that the land is contaminated.

6. The design quality principles and the Apartment Design Guide have been taken into account in accordance with cl 28(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development.

7. The Site has a frontage to Canterbury Road which is a Classified Road and accordingly State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies. In accordance with cl 101(2) of the Infrastructure SEPP I am satisfied that:

1. vehicular access to the Site is provided by a road other than the classified road (being Waverley Lane at the rear of the Site);

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development; and

3. the development is appropriately located and designed and includes measures to ameliorate potential traffic noise or vehicle emissions within the Site of the development arising from the adjacent classified road (taking into account the Acoustic Assessment by Acoustic Noise & Vibration Solutions Pty Ltd).

8. a BASIX Certificate (Certificate Number 860907M_04) prepared by Building & Energy Consultants Australia dated 28 August 2020 has been provided in accordance with State Environmental Planning Policy (Building Sustainability Index) BASIX 2004.

9. The development application was notified in accordance with the Council’s notification policy during May 2018. The submissions of objectors have been taken into account.

9. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

10. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 EP&A Act.

11. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA-163/2018, as amended, for demolition of the existing buildings and associated structures and the construction of a five storey residential flat building over two levels of basement carparking on land identified as Lots 29, 30 and 31 in Deposited Plan 10105 and known 599 – 603 Canterbury Road Belmore be approved subject to the conditions included at Annexure A.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (281669, pdf)

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Decision last updated: 24 December 2020