Rod Zoby Group Pty Ltd t/a Zta Group v Canterbury- Bankstown Council

[2019] NSWLEC 1566

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rod Zoby Group Pty Ltd t/a ZTA Group v Canterbury- Bankstown Council [2019] NSWLEC 1566
Hearing dates:	Conciliation conference on 18 October 2019; 8 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [23] below
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling development – minimum lot size non-compliance – height non-compliance – cl 4.6 written request –conciliation conference – agreement between the parties – orders
Legislation Cited:	Bankstown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Texts Cited:	Bankstown Development Control Plan 2015
Category:	Principal judgment
Parties:	Rod Zoby Group Pty Ltd t/a ZTA Group (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Counsel: S Shneider (Solicitor) (Applicant) J Strati (Solicitor) (Respondent) Solicitors: Houston Dearn O’Connor (Applicant) Canterbury-Bankstown Council (Respondent)
File Number(s):	2019/142025
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 444/2018 by Canterbury-Bankstown Council (hereafter the Council) for demolition of an existing structures and construction of a multi-dwelling housing development, consisting of four dwellings on Lot 133 DP 9034, also known as 9 Jensen Street, Condell Park (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was initially held on 18 October 2019. I presided over the conciliation conferences. There were no objectors whom spoke at the conciliation.

4. At the conciliation conference, following expert discussion, the applicant sought to amend the associated plans to the DA. Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 444/2018 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act 1979 and being satisfied, pursuant to s 4.15(1) to grant consent to DA 444/2018 with conditions, as described in Annexure A.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Bankstown Local Environmental Plan 2015 (BLEP) and the Bankstown Development Control Plan 2015 (BDCP). The parties agree specifically that the amended plans, cl 4.6 written request and conditions of consent relate to the merits of the proposal.

7. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The site is located within the R2 low density zone. The proposed development is permissible in the zone and as proposed, is not inconsistent with the zone objectives or relevant development standards, except cl 4.1B (minimum lot size for certain dwellings standard) and cl 4.3 (height standard) of the BLEP. Based on the amended plans and documents supporting the DA, the parties agree that the proposed development is consistent with the character of the local area and streetscape.

8. The parties explained that the lot size of the proposed development, at 1189m² is deficient by 11m² (equivalent to 0.91%) below the minimum lot size standard (of 1200m²), as specified in cl 4.1B(2) of the BLEP. This shortfall also leads to a non-compliance in the density control cl 4.1B(5) (requiring 300m² per dwelling), resulting in a density of 297.25 m² per dwelling.

9. In addition, the proposed development results in non-compliance of the height standard, pursuant to cl 4.3 of the BLEP. The rear dwellings result in exceedance of the maximum building height by 0.99m (equivalent to 16.5%) and wall height by 0.21m (equivalent to 5%), which is established in cl 4.3 at 6m and 4.25m for maximum building height and wall height, respectively.

10. Therefore, it is accepted that a cl 4.6 written request for variation of height and lot size is required for further consideration of the proposed development, pursuant to cl 4.6 of the BLEP, and that the Court must also be satisfied of consistency with cl 4.6 to grant consent to the DA.

11. The parties agree, that as explained in the cl 4.6 written request, the non-compliant land size of the site does not result in a development that is out of character with the local area, and is consistent with the low density of the area.

12. The cl 4.6 written request also seeks to address the non-compliance of the height standard, pursuant to cl 4.3 of the BLEP. The proposed development responds to the sloping landform, and as designed does not result in amenity impacts to the proposed residents of the site or adjoining dwellings. The relative height of the non-compliant dwellings, due to their (front) setback and location behind (height complaint) front dwellings is not perceived from the street and therefore not inconsistent with the character of the area. The wall (height) that results in exceedance of the standard is obscured by a 1.8m high fence that forms a boundary fence with an adjoining property.

13. There are no adverse impacts from visual bulk, solar access or privacy as a result of the non-compliance with the development standards for the proposed development. The parties accept that the non-compliances are not visibly perceived from the street.

14. The parties therefore agree that a variation of the lot size and height development standards, pursuant to cll 4.1B and 4.3 of the BLEP is satisfied by the cl 4.6 written request, and that the requirements for a cl 4.6 variation of the relevant development standards are satisfied.

15. Having reviewed the amended cl 4.6 written request, I agree that the cl 4.6 written request for lot size/density and height standards variation individually addresses the requirements of cl 4.6(3) by explaining that there are sufficient environmental planning grounds to justify the breach, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. The proposed development does not adversely affect the character of the local area and due to the perception of the structures from the street, the non-compliances will not be a dominant feature as viewed from the main street frontage or result in loss of amenity, particularly overshadowing or privacy to adjoining properties. There are sufficient environmental planning grounds, whereby the proposed development achieves the required setbacks and other relevant development standards.

16. The proposed development is not inconsistent with the objectives of the zone (cl 2.3 for R2 zone), lot size/density (cl 4.1B) and the height (cl 4.3) standards, as established in the BLEP. The proposed exceedances are reasonable and necessary, which do not result in adverse impact to the proposed development, adjoining properties or the character of the local area. The proposed development is in the public interest.

17. I am satisfied that the requirements of cl 4.6 of the BLEP have been addressed and that a variation in the lot size/density and height standards, pursuant to cll 4.1B and 4.3, is appropriate.

18. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the BDCP are resolved to the satisfaction of the parties.

19. The parties agree that the requirements of the BDCP are complied with, considering the amended plans and conditions of consent.

20. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are resolved to the satisfaction of the parties.

21. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 444/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act 1979.

22. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

23. The Court orders:

1. The Applicant is given leave to amend the development application and rely upon the following (amended) plans and documents:

Title	Drawing No.	Issue	Date
Cover page	A.00.1	D	5 November 2019
Site Plan	A.01.1	D	5 November 2019
Site analysis plan	A.01.2	D	5 November 2019
Demolition and Excavation Plan	A.01.3	D	5 November 2019
Ground Floor Plan	A.02.1	D	5 November 2019
First Floor Plan	A.02.2	D	5 November 2019
Roof Plan	A.02.3	D	5 November 2019
South Elevation / North Elevation	A.03.1	D	5 November 2019
East Elevation / West Elevation	A.03.2	D	5 November 2019
Section AA / Section BB	A.04.1	D	5 November 2019
Section CC. Front Fence. Back Fence	A.04.2	D	5 November 2019
FSR Calculation Ground Floor	A.05.1	D	5 November 2019
FSR Calculation First Floor	A.05.2	D	5 November 2019
Shadow Diagrams June 8AM, 9AM, 10AM	A.06.1	D	5 November 2019
Shadow Diagrams June 11AM, 12noon, 1PM	A.06.2	D	5 November 2019
Shadow Diagram June 2PM and 3PM	A.06.3	D	5 November 2019
Shadow Diagrams June 4PM	A.06.4	D	5 November 2019
Shadow Diagrams March/September 8AM, 9AM, 10AM	A.06.5	D	5 November 2019
Shadow Diagrams March/September 11AM, 12PM, 1PM	A.06.6	D	5 November 2019
Shadow Diagrams March/September 2PM, 3PM, 4PM	A.06.7	D	5 November 2019
Landscape Plan	1872.GD.01	C	31 October 2019
Stormwater Concept Plan and Details	LCB18354 SW1	D	1 November 2019
Stormwater Concept Plan and Details	LCB18354 SW2	D	1 November 2019

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to forthwith pay the thrown away costs of the Respondent in the amount of $5000.00.

3. The further revised written request to (i) vary the minimum lot size and site area per dwelling and (ii) vary the height standard, being the request prepared by Cohesive Planning dated 30 October 2019 pursuant to clause 4.6 of the Bankstown Local Environmental Plan 2015 is upheld.

4. The appeal is upheld.

5. Development application 444/2018 seeking approval to demolish existing structures at 9 Jensen Street Condell Park NSW 2200 and to construct a multi dwelling housing development comprising of four dwellings is approved subject to the conditions in Annexure A.

…………………………

S Bish

Commissioner of the Court

Annexure A (229 KB)

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Decision last updated: 21 November 2019