VL4 Pty Ltd v Canterbury-Bankstown Council

[2022] NSWLEC 1717

Land and Environment Court

New South Wales

Medium Neutral Citation:

VL4 Pty Ltd v Canterbury-Bankstown Council [2022] NSWLEC 1717

Hearing dates:

Conciliation conference on 28 November 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application No. 847/2021, as amended, for the demolition of all existing site structures and the erection of an eight (8) storey shop top housing development, over three (3) basement levels, at 64 & 66 Evaline Street, Campsie being Lots 2 and 3 DP 101315, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION –shop top housing – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, Sch 1
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021
State Environmental Planning Policy (Infrastructure) 2007 cl 104
Canterbury Local Environmental Plan 2020, cll 6.1, 6.2

Texts Cited:

NSW Department of Planning, Apartment Design Guide (July 2015)

Category:

Principal judgment

Parties:

VL4 Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Canterbury Bankstown Council (Respondent)

File Number(s):

2021/342409

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by VL4 Pty Ltd (the Applicant) against the deemed refusal of Development Application No. DA-847/2021 lodged with Canterbury-Bankstown Council (the Respondent) in October 2021.

2. The Development Application, as described broadly in the Amended Statement of Facts and Contentions (SOFAC’s), seeks Development Consent for the demolition of all existing site structures and the erection of an eight (8) storey shop top housing development, over three (3) basement levels, consisting of the following components:

1. Three (3) levels of basement carparking, and

2. One (1) ground level commercial premise, and

3. Seven (7) levels of residential units consisting of 50 apartments being 1, 2 and 3-bedroom dwellings, and

4. Rooftop communal open space, and

5. Associated landscaping on levels 3, 7 and the rooftop.

3. The proposed development is to be undertaken at 64 & 66 Evaline Street, Campsie being Lots 2 and 3 DP 101315.

4. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 28 November 2022.

5. At the conciliation conference, the parties reached an agreement, as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to agreed outcomes and agreed conditions.

6. The agreement reached by the parties was based on amended plans and material that resolved the contentions before the Court to the agreement of the parties. The applicant lodged the amended application on the NSW Planning portal on 23 November 2022 and these amendments were accepted by Council.

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

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

1. The Site is located in the B2 Local Centre Zone under the Canterbury Local Environmental Plan 2012 (CLEP 2012). Development for the proposed shop top housing development is permissible in the Zone. In determining the development application, I have had regard to the objectives of the zone.

2. Clause 6.1 to CLEP 2012, relating to acid sulfate soils, is not triggered by this application. The land is not shown on the acid sulphate soils map and therefore the requirement for an acid sulphate soils management plan, which is imposed by cl 6.1(3) of the CLEP 2012, does not apply.

3. Clause 6.2 to CLEP 2012 requires consideration of matters relating to earthworks. Development consent is sought for excavation, including the three levels of basement carparking, on the land the subject of the application. A preliminary geotechnical report prepared by EI Australia dated 28 June 2022 accompanies the application and has been considered by the parties.

4. The development application was publicly notified in accordance with the mandatory community consultation requirements of s 2.22 and Sch 1 of the EPA Act.

5. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. Consideration has been given to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65). A SEPP 65 Design Verification Statement has been submitted by the Applicant and found to be satisfactory to Council. A compliance table covering the Apartment Design Guide, Parts 3 and 4, was submitted by the Applicant and found to be satisfactory to Council.

7. Consideration has been given to State Environmental Planning Policy (Transport and Infrastructure) 2021. The application was referred to Transport for NSW pursuant cl 104 the State Environmental Planning Policy (Infrastructure) 2007 (now State Environmental Planning Policy (Transport and Infrastructure) 2021). On 17 November 2022, Transport for NSW issued their response and the conditions they requested are included in the Development Consent.

8. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The applicant has provided a Report on Preliminary Site Investigation prepared by EI Australia dated 29 June 2022, which concludes (at page 17).

“Based on the findings of this PSI, and with consideration of EI’s Statement of Limitations (Section 7), it was concluded that the potential for contamination to exist on the site was low. The site was deemed to be suitable for the proposed mixed use (commercial and residential) development, in accordance with State Environmental Planning Policy (Resilience & Hazards) 2021.”

9. Appropriate conditions dealing with any contingencies discovered during construction form part of the conditions of approval.

10. 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’ agreement.

11. I was not required to make, and have not made, an assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Orders

12. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application No. 847/2021, as amended, for the demolition of all existing site structures and the erection of an eight (8) storey shop top housing development over three (3) basement levels at 64 & 66 Evaline Street, Campsie being Lots 2 and 3 DP 101315, is determined by the grant of Development Consent subject to the conditions set out in Annexure “A”.

Stuart Harding

Acting Commissioner of the Court

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Annexure A

Decision last updated: 20 December 2022