Sydney Car Spa Pty Ltd v Canterbury Bankstown Council; Abdelhalim v Canterbury Bankstown Council

[2020] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sydney Car Spa Pty Ltd v Canterbury Bankstown Council; Abdelhalim v Canterbury Bankstown Council [2020] NSWLEC 1434

Hearing dates:

Conciliation conference on 10 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

Proceedings 2020/13523

See orders at [13]

Proceedings 2019/310374

See orders at [14]

Catchwords:

DEVELOPMENT APPLICATION – development control order – development appeal – conciliation conference – agreement between parties – orders

Legislation Cited:

Bankstown Local Environmental Plan 2015

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Badr Khairy Fathi Abdelhalim (Applicant)
Sydney Car Spa Pty Ltd (Applicant)
Canterbury Bankstown Council (Respondent)

Representation:

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

Solicitors:
Adam & Dean Lawyers (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s):

2019/310374 and 2020/13523

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Canterbury Bankstown Council (the Respondent) of Development Application No. DA-172/2019 seeking consent for a car wash operation at 49 Canterbury Road, Bankstown in the name of Sydney Car Spa Pty Ltd (the business).

2. In proceedings number 2020/13523, the business appeals the refusal of the development application (the planning appeal).

3. The car wash operation is also the subject of a development control order issued by the Respondent on 9 September 2019 pursuant to s 9.34 of the EPA Act requiring the owner of the business, Mr Abdelhalim (the Applicant) to stop using the premises as a car wash and to attend to some works associated with use alleged to be unauthorised (the order).

4. In proceedings number 2019/310374, the Applicant appeals the order (the order appeal).

5. 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 10 September 2020. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the planning appeal in accordance with s 4.16 of the EPA Act and granting development consent to the development application subject to conditions, and also upholding the order appeal so as to enliven the Court’s power to substitute the control order in accordance with s 8.18(4)(c) of the EPA Act.

7. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 15 September 2020.

8. The parties ask me to approve their decision as set out in the s34 agreement before the Court.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [13]-[14].

1. In respect of the planning appeal:

• The land is within the IN2 Light Industrial zone and SP2 Infrastructure identified in the Bankstown Local Environmental Plan 2015 (BLEP).

• The car wash operation is proposed on the IN2 Light Industrial portion of the site. “Service station” and “car wash” are both permissible uses with consent in the IN2 zone.

• The land within the SP2 zone on the Canterbury Road frontage is identified on the Land Reservation Acquisition Map in accordance with cl 5.1 of the BLEP and on which no development is proposed.

• I am satisfied that owners consent has been given to the arrangements set out in Condition 3 of the agreed conditions of consent insofar as the approved plan approved as part of this consent will prevail over previously approved parking plans and, to the extent necessary, suspends the operation of DA424/1993 which relates to a previous use formerly permitted on the same area of the site the subject of the planning appeal.

• In respect of cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I am satisfied that as there is no change of use in the type of development and no soil will be exposed as part of the development.

2. In respect of the order appeal:

• The order the subject of the order appeal was issued by the Respondent pursuant to s 9.34 of the EPA Act, requiring the cessation of the business and the removal of various structures.

• The order now proposed to be substituted by the Court is consistent with the orders set out in Schedule 5, Part 1 of the EPA Act.

11. 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.

12. 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.

Proceedings 2020/13523

13. In respect of the planning appeal, the Court orders that:

1. The Applicant is granted leave to amend its Class 1 application in accordance with the following documents and plans:

1. Amended Statement of Environmental Effects prepared by Willana Urban dated 16 June 2020

2. Site Plan – DA01.01 Issue D, 15 June 2020, prepared by H&D Studio Design

3. Floor Plan – DA01.02 Issue D, 15 June 2020, prepared by H&D Studio Design

4. Roof Plan – DA01.03 Issue A, 2 June 2020, prepared by H&D Studio Design

5. Parking Allocation Comparison DA01.04 Issue A, 15 June 2020, prepared by H&D Studio Design

6. Elevations – DA01.01 Issue A, 2 June 2020, prepared by H&D Studio Design

7. Amended Plan of Management prepared by Willana Urban dated 15 June 2020

8. Site Plan Drawing SW200 Revision B, 22 May 2020, prepared by SGC Engineering

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,500.

3. The appeal is upheld.

4. Development Application No. DA 172/2019 for a car wash as part of an existing service station at 49 Canterbury Road, Bankstown is approved subject to the conditions set out in Annexure ‘A’.

Proceedings 2019/310374

14. In respect of the order appeal, the Court orders that:

1. The appeal is upheld.

2. The development control order dated 9 September 2019 issued to the Applicant by the Respondent is substituted pursuant to s 8.18(4)(f) of the Environmental Planning and Assessment Act 1979 with an order under s 9.34 (Schedule 5, Part 1, cl 11) of the Environmental Planning and Assessment Act 1979 as follows:

1. The Applicant must carry out the works required by DA172/2019 approved by the Court on 25 September 2020 by midnight, 31 December 2020.

2. The Applicant is to notify the Respondent in writing upon completion of the works.

…………………………..

T Horton

Commissioner of the Court

Proceedings 2020/13523

Annexure A (190514, pdf)

**********

Decision last updated: 25 September 2020