Elazzi v Canterbury-Bankstown Council [2020] NSWLEC 1233

Land and Environment Court New South Wales

Medium Neutral Citation: Elazzi v Canterbury-Bankstown Council [2020] NSWLEC 1233 Hearing dates: Conciliation conference on 20 May 2020 Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Class 1 Before: Bish C Decision: Refer to orders at [18] Catchwords: DEVELOPMENT APPLICATION – boarding house –amenity – character – parking – 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 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Milad Tanios Elazzi (First Applicant) Elie Abdallah (Second Applicant) Mahmoud Kaoutarani (Third Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Shneider (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent)

Solicitors: Houston Dearn O'Connor (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/38979 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a deemed refusal of Development Application (DA) 328/2018 by Canterbury-Bankstown Council (hereafter the Council) for the demolition of existing structures and construction of a four storey boarding house of 36 rooms with parking on Lot 32 DP 832, also known as 91 Duke Street, Campsie (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 May 2020. I presided over the conciliation conference. There were two objectors whom provided written submission at this conciliation. Their issues have been considered by the parties in the making of this agreement. 4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the DA's supporting plans and provide relevant documentation to be relied upon in the granting of consent to the DA under appeal. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 328/2018 with conditions. 6. Pursuant to s 34(3) of the LEC Act, 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(1) of the EPA Act after being satisfied, pursuant to s 4.15(1), to grant consent to DA 328/2018 with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance to the Court in these proceedings, as consistency with the: State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); and Canterbury Environmental Plan 2012 (CLEP). In addition, the Canterbury Development Control Plan 2012 (CDCP) is of consideration to grant consent to the DA. 8. In compliance with the requirements of SEPP ARH, the DA is supported by amended plans, plan of management and the agreed conditions of consent, which the parties agree address the relevant requirements for consideration. The proposed development provides sufficient parking for a 20 room boarding house with a manager, appropriate internal amenity and is consistent with the character of the local area. The parties agree that the requirements of SEPP ARH are satisfied, and specifically cll 29(2) and 30A, which relate to the contentions are resolved. 9. The proposed development is required to comply with the provisions of SEPP BASIX. An updated BASIX Certificate No. 1055524_02, dated 18 May 2020, relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 10. With regards to SEPP 55, the parties are satisfied that the proposed development complies, and specifically with cl 7(1), by the stage 1 and 2 site investigations that support the DA. 11. The site is located within the R4 High Density Residential Zone, as described in the CLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the CLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are satisfied. 12. The proposed development satisfies the numeric requirements and relevant objectives of the CLEP. 13. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the CDCP are achieved to the satisfaction of the parties. The parties agree that the amended design shown in the plans addresses any potential amenity impacts raised in objection and as a contention. 14. The parties agree that the requirements of the CDCP are complied with, based on the amended plans, conditions of consent and a Plan of Management. The proposed development was publicly notified in accordance with the CDCP. During the initial notification period, 13 submissions were received by Council. Those submissions were considered by the parties, prior to reaching the agreement. The amended plans have been considered in the context of the site and with reference to the concerns raised in public submissions. 15. Based on the amended plans and supporting documents to the DA the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. 16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 328/2018 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 17. 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. 18. The Court orders that: 1. The Applicant is granted leave to rely on the following amended plans: DWG NO. DESCRIPTION PREPARED BY REV DATE DA00 Cover Page zta group F 14/04/2020 DA00.1 3D Perspective View zta group F 14/04/2020 DA01 Site Plan and Analysis zta group F 14/04/2020 DA02 Basement Plan zta group F 14/04/2020 DA03 Ground Floor Plan zta group F 14/04/2020 DA04 First Floor Plan zta group F 14/04/2020 DA05 Second Floor Plan zta group F 14/04/2020 DA06 Roof Plan zta group F 14/04/2020 DA07 West Elevation zta group F 14/04/2020 DA08 East Elevation zta group F 14/04/2020 DA09 South Elevation zta group F 14/04/2020 DA10 North Elevation zta group F 14/04/2020 DA11 Section 1-1 zta group F 14/04/2020 DA12 Soil Water Management Plan and Demolition Plan zta group F 14/04/2020 DA13 Street Elevation and Front Fence Details zta group F 14/04/2020 DA14 Shadow Diagram – Winter zta group E 07/04/2020 DA14.1 Shadow Diagram Winter 2 zta group E 07/04/2020 DA15 Shadow Perspective – Winter zta group E 07/04/2020 DA15.1 Shadow Perspective – Winter 2 zta group E 07/04/2020 DA15.2 Shadow Perspective – Winter 3 zta group E 07/04/2020 DA15.3 Shadow Perspective – Winter 4 zta group E 07/04/2020 DA15.4 Shadow Perspective – Winter 5 zta group E 07/04/2020 DA15.5 Shadow Perspective – Winter 6 zta group E 07/04/2020 DA16 Finishes Schedule zta group F 14/04/2020 DA17 FSR Diagrams zta group F 14/04/2020 DA18 Room Layout Diagrams and Calculation Table zta group F 14/04/2020 LPS34 18 – 338 Hardscape Plan Conzept Landscape Architects G 30/10/2019 Sheet 1 LPS34 18 – 338 Irrigation Concept Plan Conzept Landscape Architects F 30/10/2019 Sheet 2 LPS34 18 – 338 Landscape Plan Conzept Landscape Architects G 30/10/2019 Sheet 3 LPS34 18 – 338 Specification & Detail Conzept Landscape Architects B 25/06/2019 Sheet 4 - Detail and Contour Survey Structerre Surveying - 03/04/2018 C-000 Cover Sheet & Drawing List Structerre Consulting A 30/10/2019 C-401 Stormwater Drainage Concept Plan - Site Structerre Consulting A 30/10/2019 C-402 Stormwater Drainage Concept Plan – Basement Structerre Consulting A 30/10/2019 C-403 Stormwater Drainage Concept Plan – Gnd Flr Structerre Consulting A 30/10/2019 DOCUMENT PREPARED BY REV DATE Plan of Management - - 07/05/2020 Noise Impact Assessment Environmental Monitoring Services 0 27/04/2020 Stage 1 Preliminary Site Investigation Construction Sciences R01 23/04/2020 Stage 2 Detailed Site Investigation Construction Sciences - 07/05/2020 Access Report Access-i Pty Ltd R2.0 31/10/2019 Building Code of Australia Design Compliance Report Matt Shuter + Associates 02 03/03/2020 Traffic and Parking Assessment Varga Traffic Planning Pty Ltd - 10/10/2019 BASIX Certificate No. 1055524M_2 Building & Energy Consultants Australia - 18/05/2020