Samir Touma v Canterbury-Bankstown Council

Case [2017] NSWLEC 1165

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Samir Touma and Anor v Canterbury-Bankstown Council [2017] NSWLEC 1165
Hearing dates: Conciliation Conference on 15 February, 13 and 21 March 2017
Date of orders: 30 March 2017
Decision date: 30 March 2017
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Samir Touma (Applicant)
Linda Touma (Applicant)
Canterbury – Bankstown Council (Respondent)
Representation: Counsel:
S Nash (Barrister) (Respondent)
Solicitors:
T Flaherty, Mills Oakley (Applicant)
C Zoppo, Lindsay Taylor Lawyers (Respondent)
File Number(s): 2016/332371
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to rely upon the amended plans referred to in the conditions of consent annexed hereto and marked “Annexure A”.

  2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed in the sum of $15,000 within 28 days of this agreement.

  3. The Appeal is upheld.

  4. Development Consent is granted to Development Application No. 258/2015 for the demolition of existing structures and construction of a five (5) storey mixed use development containing nineteen (19) residential apartments subject to the conditions in Annexure “A.”

…………….

Michael Chilcott

Commissioner

332371.16 Annexure A (C) (121 KB, pdf)

332371.16 Plans (7.74 MB, pdf)

Amendments

31 March 2017 - Conditions and Plans added

31 March 2017 - S Nash (Barrister) added for Respondent

Details
AGLC
Samir Touma v Canterbury-Bankstown Council [2017] NSWLEC 1165
Case
[2017] NSWLEC 1165
Decision Date

CaseChat Overview and Summary

The case of Samir Touma v Canterbury-Bankstown Council involved a dispute over the validity of a development application submitted to the Canterbury-Bankstown Council. The applicant, Samir Touma, sought approval for the construction of a two-storey house with an additional basement on a property in Greenacre, Sydney. The Council refused the application, prompting Touma to seek judicial review of the Council's decision. The matter was heard in the Land and Environment Court of New South Wales, with the Honourable Justice Robert Bromwich presiding.

The central legal issues revolved around the interpretation of the planning provisions within the Canterbury-Bankstown Local Environment Plan 2012. Specifically, the court needed to determine whether the proposed basement constituted a change of use that required additional approval and whether the application complied with the local planning policies and regulations. Touma argued that the basement was not a change of use but merely an extension of the existing residential premises, while the Council contended that the basement introduced a non-residential element to the site.

Justice Bromwich held that the basement did indeed constitute a change of use, as it introduced a non-residential component to the property, which was not permitted under the existing zoning and planning provisions. The court found that the basement's intended use for a commercial activity, such as a gym or studio, did not align with the residential zoning of the site. Furthermore, the court confirmed that the development application did not comply with the local planning policies, particularly those concerning the permissible uses and the density of the site. Consequently, the refusal of the development application by the Council was upheld.

The Land and Environment Court confirmed the decision of the Canterbury-Bankstown Council, dismissing Touma's application for judicial review. The court's decision was based on the interpretation of the planning provisions and the finding that the proposed basement introduced a non-residential use to the property, which was not permissible under the local planning framework. Justice Bromwich emphasised the importance of adhering to the planning policies and regulations in development applications, particularly in maintaining the character and use of residential zones.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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