Zada v Canterbury-Bankstown Council

[2022] NSWLEC 1576

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zada v Canterbury-Bankstown Council [2022] NSWLEC 1576

Hearing dates:

Conciliation conference on 10 and 11 October 2022

Date of orders:

21 October 2022

Decision date:

21 October 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA-198/2022 for the demolition of existing structures, construction of a new dwelling house with a basement, swimming pool, cabana and boatshed at 35 Burbank Avenue, East Hills subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – dwelling house and boat shed – breach of wall height development standard – conciliation conference – agreement reached

Legislation Cited:

Bankstown Local Environmental Plan 2015 cll 4.3, 4.6, 5.21, 6.2, 6.5

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.18, 8.7

Environmental Planning and Assessment Regulation 2021 cll 27, 37, 38

Land and Environment Court Act 1979, s 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Pts 11, 11.2

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Andrew Zada (Applicant)
Canterbury-Bankstown Council (Respondent)

Representation:

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

Solicitors:
Hones Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2022/175158

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for demolition of existing structures, construction of a new dwelling house with basement, swimming pool, cabana and boatshed at 35 Burbank Avenue, East Hills. The development application was refused by Canterbury-Bankstown Council (the Council) on 9 June 2022. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 10 October 2022. I presided over the conciliation conference.

3. At 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 agreement was subsequently filed on 12 October 2022, following the Council’s approval of an application for an amendment to the development application pursuant to cll 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendment to the development application includes the reduction in the maximum wall height and the removal of a car space within the basement car parking area.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed jurisdictional statement dated 11 October 2022. I have considered the contents of the jurisdictional statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended development application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 Low Density Residential Zone in which the site is located, pursuant to the Bankstown Local Environmental Plan 2015 (BLEP).

• The proposed development complies with the applicable development standards in the BLEP for maximum building height and floor space ratio.

• I am satisfied that consent should be granted notwithstanding the contravention of the maximum wall height development standard. The development standard establishes a maximum wall height of 7m for dwelling houses and dual occupancies on properties in the R2 Low Density Residential zone, pursuant to cl 4.3(2B)(b) of the BLEP. The proposed maximum wall height is 7.59cm on the south-eastern elevation and 7.47m on the north-western elevation, which represents a contravention of 590mm on the south-eastern wall and 470mm on the north-western wall. The contravention is confined to the leading edge of the upper storey of the proposed development and extends about half way along the upper storey. I am satisfied that the written request, lodged pursuant to cl 4.6 of the BLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the wall height development standard by demonstrating that the breach arises from the considerable fall of the site from the road to the rear and allows the proposed development to have a character that is consistent with the emerging pattern of development along that side of Burbank Avenue and the foreshore area of the Georges River. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given the minor extent of the breach, the absence of any impact caused by the breach, and on the basis that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Clause 5.21 of the BLEP, which concerns flood planning, applies to the proposed development. Based on the contents of the Stormwater System Report dated 3 November 2021 and the Amended Stormwater Plans (Revision E) dated 6 October 2022, I am satisfied of the matters in cl 5.21(2) and I have considered the matters in cl 5.21(3).

• The development application includes earthworks for the provision of the basement level and the lower basement level. Based on the Geotechnical Investigation Report dated 27 May 2022 and the joint report of the geotechnical engineers filed on 7 October 2022, I have considered the matters set out in cl 6.2(3) of the BLEP.

• Clause 6.5 of the BLEP limits development on foreshore area and applies to the site. The proposed development seeks the erection of structures within the foreshore building line that fall within the exceptions permitted by cl 6.5(2)(b), for which development consent can be granted subject to the satisfaction of the matters in cl 6.5(3). Based on the architectural plans and the matters set out in the Statement of Environmental Effects dated May 2022, I am satisfied of the matters set out in cl 6.5(3).

• Consideration has been given as to whether the subject site is contaminated, as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• Consistent with the requirements of cl 27 of the EPA Regulation 2021, the amended development application is accompanied by the BASIX certificate dated 7 October 2022.

• The site is located within the area identified as the Georges River Catchment pursuant to Pt 11 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C). Based on the architectural plans, the Statement of Environmental Effects dated March 2022 and the Statement of Environmental Effects dated May 2022, I have considered the matters and principles contained in Pt 11.2 of the SEPP B&C.

• The development application was notified between 27 April 2022 and 24 May 2022 in accordance with s 4.18 of the EPA Act, and one submission was received. I have considered the contents of that submission.

6. 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)).

7. 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 4.15 of the EPA Act.

8. The Court notes:

1. That Canterbury-Bankstown Council, as the relevant consent authority, has agreed, pursuant to cl 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-198/2022 with the plans and documents listed in Annexure A.

2. That Canterbury-Bankstown Council, as the relevant consent authority, has approved, pursuant to cl 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-198/2022 with the plans and documents listed in Annexure A.

3. The Applicant uploaded the documents referred to above onto the NSW Planning Portal on 20 October 2022.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA-198/2022 for the demolition of existing structures, construction of a new dwelling house with a basement, swimming pool, cabana and boatshed at 35 Burbank Avenue, East Hills subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

**********

Annexure A

Decision last updated: 21 October 2022