Wang v Canterbury-Bankstown Council

[2018] NSWLEC 1588

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wang v Canterbury-Bankstown Council [2018] NSWLEC 1588
Hearing dates:	Conciliation conference on 2 November 2018
Date of orders:	23 November 2018
Decision date:	23 November 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [8] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Rong Feng Wang (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: B Bradley, Conomos Legal (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/80106
Publication restriction:	No

Judgment

COMMISSIONER

1. This is an appeal against refusal by Canterbury-Bankstown Council of Development Application No. DA 233/2015. The application based on amended plans seeks the demolition of existing structures and construction of a 5-storey mixed use development comprising a residential flat building containing 52 units (1x studio, 18 x 1 bedroom, 30 x 2 bedroom and 3 x 3 bedroom units) and 3 x ground floor business premises over basement parking for 105 vehicles (83 x residential, and 22 x commercial) at 857-875 Canterbury Road, Lakemba.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the EPA Act 1979.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 2 November 2018. I have presided over the conciliation conference. There were no objections raised by third parties.

4. 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 is to uphold the appeal and grant consent to DA 233/2015 with conditions.

5. Under s 34(3) of the LEC Act 1979, 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 function under s 4.16 of the EPA Act 1979 to grant consent to the development application with conditions. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.16(1) of the EPA Act 1979, as consistency with the Canterbury Local Environmental Plan 2012, and s 7.4 of the EPA Act 1979 requiring a voluntary planning agreement. Specifically, the parties explained that the development is based on amended plans compliant with height requirements and results in no adverse amenity impacts due to compliance with setbacks and building separation design. In resolution of the traffic issues, the applicant will dedicate land for the construction of a laneway, pursuant to s 7.4 of the EPA Act 1979, as shown in Annexure “X” and in compliance with s 4.15(1)(a)(iiia).

6. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979.

7. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

8. The Court orders:

1. The Applicant is granted leave to rely on the plans and documents set out under condition 5 of the conditions of consent annexed hereto and marked "A". The Applicant is also granted leave to rely on the letter of offer to enter into a voluntary planning agreement, dated 17 October 2018 as set out in Annexure “X”.

2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the EPA Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA-233/2015, for the demolition of existing structures and construction of a 5 storey mixed use development comprising a residential flat building containing 52 units (1x studio, 18 x 1 bedroom, 30x 2 bedroom and 3x 3 bedroom units) and 3x ground floor business premises over basement parking for 105 vehicles (83x residential and 22x commercial) at 857-875 Canterbury Road, Lakemba, subject to the conditions of consent annexed hereto, marked "A".

……………………..

S Bish

Commissioner of the Court

Annexure A (362 KB, pdf)

Annexure X (999 KB, pdf)

Plans_Part1 (10.3 MB, pdf)

Plans_Part2 (9.66 MB, pdf)

Plans_Part3 (3.48 MB, pdf)

Plans_Part4 (12.0 MB, pdf)

Plans_Part5 (8.99 MB, pdf)

Plans_Part6 (10.6 MB, pdf)

Plans_Part7 (10.1 MB, pdf)

Plans_Part8 (9.23 MB, pdf)

Plans_Part9 (4.78 MB, pdf)

Plans_Part10 (9.88 MB, pdf)

Plans_Part11 (7.10 MB, pdf)

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Amendments

06 December 2018 - Insertion of Plans referred to in Annexure A