Land and Environment Court New South Wales Medium Neutral Citation: Zabakly v Canterbury-Bankstown Council [2020] NSWLEC 1272 Hearing dates: Conciliation conference 07 April 2020 Date of orders: 26 June 2020 Decision date: 26 June 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court Orders: (1) The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 3 in Schedule B of Annexure A. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away on the amended plans in the agreed amount of $4,400. (3) The appeal is upheld. (4) Development application 229/2019 seeking alterations and additions to an existing dwelling, BCA upgrades and use of a separate existing building at the rear of the site as a secondary dwelling is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions – secondary dwelling – 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 Category: Principal judgment Parties: Lina Zabakly (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2019/271132 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Canterbury-Bankstown Council (Council) of Development Application No. 229/2019 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 556.4 m2 parcel of land identified as Lot 130 in DP 215143 at 39 Kensington Street, Punchbowl (the site). The DA as submitted to the Council on 30 April 2019 sought consent for 1. alterations and additions to an existing dwelling (the principal dwelling); 2. alterations to a separate building at the rear to accommodate 2 x bedrooms and living space associated with the principal dwelling; and 3. alterations and additions to the separate building to also include a secondary dwelling, and use of that space as a secondary dwelling. 1. A second appeal (2019/271158) relating to a Building Information Certificate (BIC) was also filed with the Court on the same date as this Class 1 appeal relating to the DA. The BIC application sought to regularise unauthorised works in the rear building and referred to in the DA. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), and ordered that the two matters (the DA and the BIC application) be considered concurrently due to their inter-relationship. 2. I presided over the conciliation conference held on 7 April 2020. Due to COVID 19 protocols in place at the time there was no site inspection and the conciliation conference was held via teleconference. Amended plans formed the basis of discussions at the conciliation conference, and these were further amended during and following the conference. 3. On 25 May 2020 the parties filed with the Court a s34 agreement reached between them, along with draft conditions (Annexure 'A' to the agreement), the final agreed architectural plans, a demolition plan and two BASIX certificates (one for each dwelling). A final section s34 agreement was filed on 24 June 2020. 4. The main changes between the plans as refused by Council on 24 May 2019 and the final plans the subject of the s34 agreement are: 1. The building at the rear has been reduced in area from over 110m2 to 60m2 and has been reconfigured to accommodate a two bedroom secondary dwelling only. 2. The setback from the rear boundary has been increased from 460mm to 5.742m, and the landscaped area and private open space areas increased substantially. The alterations and additions to the three bedroom principal dwelling at the front of the site were not changed, and were not in contention. 1. The s34 agreement includes a deferred commencement condition requiring, prior to the issuing of an operational consent: 1. demolition works to the rear building, in accordance with the demolition plan, and 2. the approval by Council of a building information certificate application for the remaining unauthorised works within the secondary dwelling. 3. Accordingly it was agreed between the parties that the BIC appeal filed with the Court be discontinued, and this occurred upon the filing of the formal Notice of Discontinuance on 27 May 2020. 1. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 9 and 10 below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Canterbury Local Environmental Plan 2012 (CLEP 2012) are: 1. The development is for the purpose of a dwelling house, which is a use permissible with consent in the R3 Medium Density Residential Zone (R3 Zone), and for a secondary dwelling which is prohibited in the R3 Zone but rendered permissible pursuant to Clause 20 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 2. I accept the advice of the parties and the evidence contained in the amended application that the development complies with all relevant development standards in CLEP 2012. 1. The jurisdictional matters in relation to other relevant statutory instruments are: 1. In relation to the SEPP ARH, 1. Clause 20 renders the development permissible with consent, 2. Clause 22(3) (a) is satisfied as the total floor area of the principal dwelling and the secondary dwelling combined is 153.5 m2 and therefore does not exceed the maximum floor area allowed for a dwelling house, which in this instance is 315.65 m2 (based on the FSR of 0.55:1 at Clause 4.3 of CLEP 2012), and 3. Clause 22(3)(b) is satisfied because the total floor area of the secondary dwelling does not exceed 60 m2 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. I accept the advice in the Statement of Environmental Effects lodged with the original DA that the site has historically been used for residential purposes. Accordingly the site is unlikely to contain any contamination, and therefore no opinion needs to be formed under clause 7(10(b) – (c) of SEPP 55. I also note that no excavation works are proposed and there are no contamination issues in contention. 2. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP) two Certificates numbered A345330_03 and AA374711 (both dated 09 April 2020) have been provided demonstrating compliance with the BASIX SEPP, and the conditions of consent require compliance with these Certificates. Disposal of proceedings in accordance with the parties' decision: 1. 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. 2. The Court orders: 1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 3 in Schedule B of Annexure A. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away on the amended plans in the agreed amount of $4,400. 3. The appeal is upheld. 4. Development application 229/2019 seeking alterations and additions to an existing dwelling, BCA upgrades and use of a separate existing building at the rear of the site as a secondary dwelling is approved subject to the conditions in Annexure A. ………………………………. J Bindon Acting Commissioner of the Court Annexure A (192343, pdf) Plans (744807, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2020