Statewide Planning Pty Ltd ATF Statewide Planning Trust v Canterbury-Bankstown Council
[2023] NSWLEC 1585
•06 October 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Statewide Planning Pty Ltd ATF Statewide Planning Trust v Canterbury-Bankstown Council [2023] NSWLEC 1585 Hearing dates: Conciliation conference held on 29 September 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Consent DA-255/2018 is modified by consent to Modification Application DA-255/2018/A, in the terms set out in Annexure A.
(3) Development Consent DA-255/2018 is subject to the consolidated conditions as described in Annexure B.
Catchwords: MODIFICATION APPLICATION – changes relating to an approved building – conciliation conference – agreement between the parties – orders
Legislation Cited: Canterbury Local Environment Plan 2012
Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 4.55, 4,56, 8.9
Environmental Planning and Assessment Regulation 2021, ss 38, 98, 113
Land and Environment Court Act 1979, s 34
Texts Cited: Canterbury Development Control Plan 2012
Canterbury-Bankstown Community Participation Plan 2022
Category: Principal judgment Parties: Statewide Planning Pty Ltd ATF Statewide Planning Trust (Applicant)
Canterbury-Bankstown Council (Respondent)Representation: Counsel:
Solicitors:
M Norman (Solicitor) (Applicant)
A Jucha (Respondent)
Mills Oakley (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2023/97010 Publication restriction: Nil
Judgment
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COMMISSIONER: This is an appeal against the deemed refusal for modification of Development Consent DA-255/2018 (the Consent) by Canterbury-Bankstown Council (hereafter the Council), as sought in Modification Application DA-255/2018/A (the MA), which seeks changes to the approved residential flat building as a 5-6 storey building with 59 units, two basement levels for parking, landscaping and stormwater works on Lot 49 in Deposited Plan (DP) 1031432, Lots A and B in DP 352069, Lots 113A in DP 307438, Lots 7,9 and 10 in DP 16308 and Lot B in DP 103679, also known as 754-774 Canterbury Road, Belmore (together the site).
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The MA seeks amendment to the original Consent (DA-255/2018) by an increase in the floor-to-floor basement height, in addition to changes to waste management area, storage areas, carparking/bicycle spaces, unit layouts, internal circulation and utility works.
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The original Development Application DA-255/2018 was determined by the Land and Environment Court after refusal by the Local Planning Panel on 4 May 2022.
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The MA was lodged on 29 March 2023. The Applicant appealed against the deemed refusal of the MA, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
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The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by request of the parties. The conciliation conference was held via Microsoft Teams before me as the 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 s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).
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At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court, which amended the original consent and amends existing conditions to reflect this change, as described in Annexures A and B.
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Pursuant to s 34(3) of the Court 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 exercising its power under s 4.55(8) of the EPA Act, to amend the Consent, as described in Annexure A, with consolidated conditions provided in Annexure B.
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The requirements of s 4.56(1)(a) of the EPA Act are satisfied. The parties agree that the modification is substantially the same as originally approved under the Consent, specifically with regards to the built form, resulting in no environmental impact and is consistent with the other conditions of the consent.
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The parties confirm that concurrence of relevant authorities is not required, pursuant to s 4.46 of the EPA Act, and that the requirements of s 4.55(2)(b) are not relevant for consideration.
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The parties agree that the amendment to the building design and conditions of consent address all relevant jurisdictional requirements. These amendments are consistent with the provisions of the Canterbury Local Environment Plan 2012. Satisfaction of the requirements of s 4.15(1) of the EPA Act remain consistent with as assessed in the Consent. The requirements of s 4.56(1A) are addressed.
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The Council confirms that the notification of the MA was not required, pursuant to the requirements of the Canterbury Development Control Plan 2012 and the Canterbury-Bankstown Community Participation Plan 2022. Council have considered the submissions made during the notification of the Consent. Therefore, s 4.56(1)(b), (c) and (d) of the EPA Act are satisfied.
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I am satisfied, based on the evidence before the Court, that there are no jurisdictional impediments to the agreement seeking modification to the Consent, as described in Annexures A and B. Council has undertaken the appropriate merit assessment and I have considered the jurisdictional assessment provided by the parties. The appeal for Modification Application DA-255/2018-A satisfies the requirements of ss 4.56(1) and (1A) of the EPA Act for the Court to grant consent to modify the Consent.
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All actions relied on by the MA are specific to the site and the Applicant is the owner of the site, pursuant to s 98(1) of the Environmental Planning and Assessment Regulation 2021.
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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 Court 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 s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA-255/2018, as follows:
Plan Name
Drawing number
Revision
Date
Prepared by
Amended Architectural Plans
Cover Sheet
DA00
6
04.08.23
Tony Owen Partners
Site Analysis And Demolition Plan
DA01
2
04.08.23
Tony Owen Partners
Site, roof plan
DA02
3
04.08.23
Tony Owen Partners
Basement 01
DA03
5
04.08.23
Tony Owen Partners
Lower ground
DA04
5
04.08.23
Tony Owen Partners
Level 01
DA05
3
04.08.23
Tony Owen Partners
Level 02
DA06
4
04.08.23
Tony Owen Partners
Level 03
DA07
4
04.08.23
Tony Owen Partners
Level 04
DA08
4
04.08.23
Tony Owen Partners
Level 05
DA09
4
04.08.23
Tony Owen Partners
Roof plan
DA09A
2
04.08.23
Tony Owen Partners
Section A-A
DA10
3
04.08.23
Tony Owen Partners
Section B-B
DA11
3
04.08.23
Tony Owen Partners
North elevation
DA12
3
04.08.23
Tony Owen Partners
South elevation
DA13
3
04.08.23
Tony Owen Partners
West elevation
DA14
4
04.08.23
Tony Owen Partners
East elevation
DA15
3
04.08.23
Tony Owen Partners
Finishes schedule
DA16
3
04.08.23
Tony Owen Partners
Height Plane Diagram S.4.55 As lodged
DA17
2
09.02.23
Tony Owen Partners
Height Plane Diagram As amended June 2023
DA17
2
09.02.23
Tony Owen Partners
Shadow diagram 1
DA17
2
04.08.23
Tony Owen Partners
Shadow diagram 2
DA18
1
04.08.23
Tony Owen Partners
Elevation shadow diagram 21/06
DA19
1
04.07.23
Tony Owen Partners
Elevation shadow diagram 21/06
DA19A
1
04.07.23
Tony Owen Partners
Pre and post adaptation plan
DA20
2
04.08.23
Tony Owen Partners
GFA, COS
DA21
3
04.08.23
Tony Owen Partners
Parking schedule
DA22
5
04.08.23
Tony Owen Partners
Cross ventilation diagram
DA22A
3
04.08.23
Tony Owen Partners
Perspective 1
DA23
2
04.08.23
Tony Owen Partners
Perspective 2
DA24
1
04.08.23
Tony Owen Partners
Perspective 3
DA25
1
04.08.23
Tony Owen Partners
Notification plan 01
DA26
2
04.08.23
Tony Owen Partners
Notification plan 02
DA27
2
04.08.23
Tony Owen Partners
Slab Edge Detail 04
A2024
2
04.07.22
Tony Owen Partners
Slab Edge Detail 06
A2026
2
19.06.23
Tony Owen Partners
Waste chute discharge
DA32A
2
04.08.23
Tony Owen Partners
Garbage room ramp section
DA33
2
04.08.23
Tony Owen Partners
Deep soil calculations
DA34
2
04.08.23
Tony Owen Partners
Amended Stormwater Plans
Cover Sheet Plan
000
C
17.07.23
C & S Engineering Services
Stormwater layout plan basement level 1 Sheet 1 of 2
101
D
02.02.23
C & S Engineering Services
Stormwater layout plan basement level 1 Sheet 2 of 2
102
D
02.02.23
C & S Engineering Services
Stormwater layout plan lower ground level
103
E
17.07.23
C & S Engineering Services
On-site detention details and calculation sheet
104
D
17.07.23
C & S Engineering Services
Stormwater Layout Plan Level 1
105
C
17.07.23
C & S Engineering Services
Sediment and Erosion Control Plan Details
106
B
02.02.23
C & S Engineering Services
Miscellaneous Details Sheet
107
C
17.07.23
C & S Engineering Services
Reports
BCA Letter concerning legislative amendments and impact on development prepared by SP Certification and consultancy dated 19 June 2023
Amended Operational Waste Management Plan prepared by Elephants Foot dated 21 June 2023
Traffic assessment letter prepared by Transport and Traffic Planning Associates dated 16 June 2023
Duct Saver Space Saver Low Profile Ducting brochure
Amended BASIX certificate prepared by Ecoplus Consultants Pty Ltd dated 18 September 2023
Amendments to the Development Application DA-255/2018 were filed with the Court on 27 September 2023.
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The Court orders that:
The appeal is upheld.
Development Consent DA-255/2018 is modified by consent to Modification Application DA-255/2018/A, in the terms set out in Annexure A.
Development Consent DA-255/2018 is subject to the consolidated conditions as described in Annexure B.
…………………………
Sarah Bish
Commissioner of the Court
Annexure A (186729, pdf)
Annexure B (236031, pdf)
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Decision last updated: 06 October 2023
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