Roselands Star Pty Ltd v Canterbury-Bankstown Council
[2023] NSWLEC 1726
•01 December 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Roselands Star Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1726 Hearing dates: Conciliation conference held on 24 November 2023 Date of orders: 01 December 2023 Decision date: 01 December 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders:
(1) The appeal is upheld.
(2) Development Application DA-500/2020, which seeks the demolition of existing structures, lot amalgamation of three lots into one lot, and construction of a five-storey shop-top housing development over two levels with basement car parking and landscaping on Lots 1 and 2 in Deposited Plan (DP) 511598, and Lot X in DP 418488, also known as 892-906 Canterbury Road, Roselands, is determined by the grant of consent, subject to the conditions in Annexure A.
(3) The Applicant must pay the Respondent’s costs thrown away, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed, in the amount of $6,000 (ex GST).
Catchwords: DEVELOPMENT APPLICATION – shop top housing development – conciliation conference – agreement between the parties – orders
Legislation Cited: Canterbury Local Environmental Plan 2012, cl 2.3
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll 49, 55
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119
State Environmental Planning Policy 65 – Design Quality of Residential Apartment Development, cll 28, 30
Cases Cited: Canterbury Development Control Plan 2012
Texts Cited: NSW Department of Planning and Environment, Apartment Design Guide, 2015
Canterbury Development Control Plan 2012
Category: Principal judgment Parties: Roselands Star Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)Representation: Counsel:
Solicitors:
I Alder (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2022/371781 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal against the refusal of Development Application DA-500/2020 (the DA) by the Canterbury-Bankstown Council (the Council), which as amended, seeks demolition of existing structures, lot amalgamation of three lots into one lot, and construction of a five-storey shop-top housing development over two levels with basement car parking and landscaping on Lots 1 and 2 in Deposited Plan (DP) 511598, and Lot X on DP 418488, also known as 892-906 Canterbury Road, Roselands (the site).
Background
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The DA was lodged with Council on 8 July 2020. The original DA was notified to residents, with two submissions received, and was referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act). The DA was referred to the Local Planning Panel, who recommended refusal on 10 December 2021.
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The Applicant sought a review of the determination, which remains undetermined. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.
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Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and was held before me as duty Commissioner.
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Prior to the conciliation, the Council agreed for the Applicant to amend the plans and documents that support the DA, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended DA was renotified, with no submissions received.
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Based on the amended DA and the agreed conditions of consent, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been considered and are resolved. The issues raised by the objectors have also been considered in Council’s merit assessment. The agreed position of the parties, as described in their jurisdictional assessment, is for the Court to grant consent to the amended Development Application DA-500/2020, with conditions.
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Pursuant to s 34(3) of the LEC Act, 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 making a determination under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, and other relevant jurisdictional requirements, to grant consent to DA-500/2020, subject to conditions in Annexure A.
Jurisdictional prerequisites
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Section 4.15(1) of the EPA Act establishes the matters to be considered in determining a development application. The following jurisdictional requirements have been specifically considered and are addressed:
Canterbury Local Environmental Plan 2012 (CLEP):
Pursuant to cl 2.3 of the CLEP, the proposed residential development is situated over land zoned B2 Local Centre. The proposed development, as described to the Court, is permissible with consent. The amended DA addresses all the relevant objectives, aims, standards and requirements of the CLEP.
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65):
The DA proposes residential apartments above retail premises, which engages consideration of the relevant provisions of SEPP 65.
Pursuant to cl 28(2)(a) of SEPP 65, there is no Council design review panel required for consideration of the DA based on the date of application.
Pursuant to cl 28(2)(b) of SEPP 65, the DA relies on a SEPP 65 Design Verification Report, prepared by Architecture Design Studio Pty Ltd, dated September 2023. The design quality principles established in SEPP 65 have been considered and are addressed by the amended design.
Pursuant to cl 28(2)(c) of SEPP 65, the Design Verification Report considers the requirements described in the Apartment Design Guide 2015. The relevant considerations are deemed to comply or have merit.
Pursuant to cl 30(2)(a) of the SEPP 655, the Respondent is satisfied the proposed development has had regard to and demonstrates design quality principles.
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):
The site has frontage to Canterbury Road, State classified road, engaging s 2.119 of the SEPP Infrastructure.
The DA is supported by a Traffic and Parking Assessment, prepared by Motion Traffic Engineers, dated January 2022, and a Traffic and Environmental Noise Assessment, prepared by Acoustic Noise & Vibration Solutions, dated 15 February 2022.
The DA was referred to Transport for NSW (TfNSW), and the general terms of approval issued are considered in the amended development and conditions of consent.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):
Pursuant to Ch 4 of the SEPP Resilience, the contamination status of the site must be considered, prior to grant of consent. Based on the existing use of the site as residential and documents that support the DA, the Council has appropriately considered that the site can be made suitable for development purpose, which together with the agreed conditions of consent addressing any unexpected finds, satisfy the relevant requirements of s 4.6.
The DA is supported by a: Preliminary Site Investigation, prepared by Aargus, dated 17 November 2014; Detailed Site Investigation, prepared by Australian GeoEnviro Pty Ltd, dated 12 August 2021; and a Remedial Action Plan, prepared by Australian GeoEnviro Pty Ltd, dated 11 November 2021.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:
A BASIX Certificate (1200132M_05), issued on 14 November 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.
Canterbury Development Control Plan 2012 (CDCP):
The original and amended DA was publicly notified in accordance with the CDCP, with two and nil submissions received, respectively. The relevant requirements of the CDCP have been considered in Council’s merit assessment and are generally complied with, based on the amended plans and supporting documents to the amended DA, and as described in the agreed conditions of consent.
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Pursuant to cl 49(1) of the EPA Reg, the application has satisfied the Court with the provision of consent from relevant landowner.
Grant of consent
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Based on the amended plans and supporting documents to the DA, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.
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The Council has undertaken the appropriate merit assessment of the proposed development. The Court is advised that the issues raised in contention have been addressed by the amendments made to the application.
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I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA-500/2020 can be granted consent.
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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 to dispose of the proceedings in accordance with the parties' decision.
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The Court notes that:
Canterbury-Bankstown Council, as the relevant consent authority, has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA-500/2020 as follows:
Plan Name
Drawing number
Revision
Date
Prepared by
Amended Architectural Plans
Coversheet
0000
Y
7 September 2023
Architecture Design Studio
Lower Basement Plan
1101
Y
7 September 2023
Architecture Design Studio
Upper Basement Plan
1102
Y
7 September 2023
Architecture Design Studio
Ground Floor Plan
1201
Y
7 September 2023
Architecture Design Studio
First Floor Plan
1301
Y
7 September 2023
Architecture Design Studio
Second Floor Plan
1302
Y
7 September 2023
Architecture Design Studio
Third Floor Plan
1303
Y
7 September 2023
Architecture Design Studio
Fourth Floor Plan
1304
Y
7 September 2023
Architecture Design Studio
Fifth Floor Plan
1305
Y
7 September 2023
Architecture Design Studio
North Elevation
1501
Y
7 September 2023
Architecture Design Studio
East Elevation
1502
Y
7 September 2023
Architecture Design Studio
West Elevation
1503
Y
7 September 2023
Architecture Design Studio
South Elevation
1504
Y
7 September 2023
Architecture Design Studio
Section 01
1601
Y
7 September 2023
Architecture Design Studio
Section 03
1602
Y
7 September 2023
Architecture Design Studio
Driveway Ramp Profile
1603
Y
7 September 2023
Architecture Design Studio
Typical Pre-Adaptable Unit
3001
Y
7 September 2023
Architecture Design Studio
Typical Livable Unit
3002
Y
7 September 2023
Architecture Design Studio
First Floor – Cross Ventilation Diagram
3101
Y
7 September 2023
Architecture Design Studio
Second Floor – Cross Ventilation Diagram
3102
Y
7 September 2023
Architecture Design Studio
Third Floor – Cross Ventilation Diagram
3103
Y
7 September 2023
Architecture Design Studio
Fourth Floor – Cross Ventilation Diagram
3104
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 8:00am
8101
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 8:00am
8101(a)
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 9:00am
8102
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 9:00am
8102(a)
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 10:00am
8103
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 11:00am
8104
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 12:00pm
8105
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 1:00pm
8106
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 2:00pm
8107
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 3:00pm
8108
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 4:00pm
8109
Y
7 September 2023
Architecture Design Studio
Shadows Diagram June 21 @ 4:00pm
8109(a)
Y
7 September 2023
Architecture Design Studio
External Perspective 01
8501
Y
7 September 2023
Architecture Design Studio
External Perspective 02
8502
Y
7 September 2023
Architecture Design Studio
Schedule of Materials and Finishes
8502
Y
7 September 2023
Architecture Design Studio
3D Maximum Height Plane
8503
Y
7 September 2023
Architecture Design Studio
Amended Landscape Plans
Ground Floor Plan
18-3896 LO1
F
8 September 2023
Zenith Landscape Designs
First Floor Plan
18-3896 LO2
F
8 September 2023
Zenith Landscape Designs
Fourth Floor Plan
18-3896 LO3
F
8 September 2023
Zenith Landscape Designs
Fifth Floor Plan
18-3896 LO4
F
8 September 2023
Zenith Landscape Designs
Plant Schedule
18-3896 LO5
F
8 September 2023
Zenith Landscape Designs
Reports
Amended SEPP 65 Design Report and ADG Compliance Table prepared by Architecture Design Studio dated September 2023
Amended Waste Management Plan prepared by Architecture Design Studio dated 13 September 2023
Updated Traffic & Environmental Noise Assessment prepared by Acoustic Noise & Vibration Solutions dated 23 May 2023
BASIX Certificate 1200132M_05 dated 14 November 2023
The Applicant has filed the relevant amendments to the Development Application DA-500/2020 with the Court on 21 November 2023.
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The Court orders that:
The appeal is upheld.
Development Application DA-500/2020, which seeks the demolition of existing structures, lot amalgamation of three lots into one lot, and construction of a five-storey shop-top housing development over two levels with basement car parking and landscaping on Lots 1 and 2 in Deposited Plan (DP) 511598, and Lot X in DP 418488, also known as 892-906 Canterbury Road, Roselands, is determined by the grant of consent, subject to the conditions in Annexure A.
The Applicant must pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $6,000 (ex GST).
Sarah Bish
Commissioner of the Court
Annexure A
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Decision last updated: 01 December 2023
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