Statewide Planning Pty Ltd v Canterbury-Bankstown Council

[2020] NSWLEC 1553

Land and Environment Court

New South Wales

Medium Neutral Citation:

Statewide Planning Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1553

Hearing dates:

Conciliation conference on 22 October 2020

Date of orders:

10 November 2020

Decision date:

10 November 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The applicant is granted leave to amend the modification application to rely on architectural plans No. CC05 Z Level 1 dated 23/10/2020, and No. CC33 D Section 1+2 dated 3 November 2020 prepared by Aleksandar Design Group Pty Ltd.

(2)   The appeal is upheld.

(3)   Modification application DA-738/2015/C to add an additional 38sqm to the previously approved retail premises is approved, subject to the conditions contained in the annexure marked "A" and in accordance with the architectural plans marked "B".

Catchwords:

APPEAL – modification application – modification of condition imposed on the grant of a modification – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Statewide Planning Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Blackstone Waterhouse Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2020/230881

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to a modification application concerning a development consent granted in February 2016 for the construction of an 11-storey mixed use development at 5 French Avenue, Bankstown. The modification application sought to extend the existing retail floor area, and add 37m² of floor space to the ground floor retail area. Canterbury-Bankstown Council (“the Council”) granted the modification application, but imposed a condition on the modified consent that required two walls at the ground floor level to be demolished prior to the issue of any occupation certificate for the use of the new area. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows an “applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority” to appeal against that determination. As such, the appeal is against the grant of the application subject to conditions. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 22 October 2020. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application on conditions, including a condition that departs from that which was imposed by the Council requiring the demolition of the two walls. Specifically, the result of granting the modification application on the basis of the new condition removes the requirement to demolish the two walls and replaces it with a requirement to partially demolish the walls and replace one wall with glass bifold doors, and the other wall with transparent glass. The details of the extent of demolition and the replacement glass doors/wall are shown in Annexure B to these orders.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the development still remains one for mixed use with ground floor retail, and the modified development adds retail space and changes the ground floor plan but does not change any essential element of the development that was originally approved.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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 4.55(3) of the EPA Act.

7. The Court orders that:

1. The applicant is granted leave to amend the modification application to rely on architectural plans No. CC05 Z Level 1 dated 23/10/2020, and No. CC33 D Section 1+2 dated 3 November 2020 prepared by Aleksandar Design Group Pty Ltd.

2. The appeal is upheld.

3. Modification application DA-738/2015/C to add an additional 38sqm to the previously approved retail premises is approved, subject to the conditions contained in the annexure marked "A" and in accordance with the architectural plans marked "B".

……………………

J Gray

Commissioner of the Court

Annexure A (116593, pdf)

Annexure B (504185, pdf)

**********

Decision last updated: 10 November 2020