Land and Environment Court New South Wales Medium Neutral Citation: Frederick Street 1 Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1433 Hearing dates: 11 September 2020 Date of orders: 21 September 2020 Decision date: 21 September 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application and rely on the amended plans and documents in condition 2 of Annexure A. (2) Pursuant to s8.15(3) of the Environmental Planning and Assessment Act, the applicant is to pay the respondent's s8.15(3) costs thrown away in the proceeding in the agreed amount of $6,000, within 28 days of the date of these Orders. (3) The appeal is upheld. (4) Development application DA-2/2019 seeking the demolition of existing structures and construction of a 3-storey residential flat building comprising of 9 units and car parking is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential flat building – amenity – character – contamination assessment – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 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 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Texts Cited: Apartment Design Guide Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Frederick Street 1 Pty Ltd (First Applicant) Frederick Street 2 Pty Ltd (Second Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicants) M Bonanno (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicants) Canterbury-Bankstown Council (Respondent) File Number(s): 2019/223143 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 2/2019 by Canterbury-Bankstown Council (hereafter the Council), which as amended, seeks the demolition of existing structures and construction of a three-storey residential flat building for 9 units with parking on Lot 82 DP 4869, also known as 52 Frederick Street, Campsie (hereafter the site). 2. This Class 1 appeal is made under s 8.7 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 11 September 2020. I presided over the conciliation conference as duty commissioner. There were no objectors whom spoke or provided written submission at this conciliation. 4. Prior to this conciliation conference, and following expert discussion, the applicant amended the supporting plans and documents to the DA to be relied upon in the granting of consent to the DA under appeal. Leave is granted by the Court, unopposed by the respondent, to amend 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 previously raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2/2019 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 and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2/2019 with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance to the Court to be satisfied to grant consent in these proceedings, pursuant to s 4.15 of the EPA Act, as consistency with the: Environmental Protection and Assessment Regulation 2000 (EPA Reg); State Environmental Planning Policy No 55 – Remediation of Land; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH); and Canterbury Local Environmental Plan 2012 (CLEP). In addition, the Canterbury Development Control Plan 2012 (CDCP) is of consideration to grant consent to the DA. 8. The parties agree that cl 50(1AB) of the EPA Reg is addressed to their satisfaction by the amendments made to the Design Verification Statement, dated 29 March 2020, as required pursuant to SEPP 65. 9. In compliance with the requirements of SEPP 65 and SEPP ARH, the DA is supported by amended plans and the conditions of consent. The proposed development provides appropriate design quality and amenity, and has had regard to the requirements of SEPP 65, SEPP ARH and the Apartment Design Guide (ADG). The parties agree that the proposed development is in character with the local area and the requirements of the SEPP's ARH and 65 are satisfied, which resolves the contentions that relate to cll 16(A) and 30A, respectively. 10. The parties agree that the amended DA responds to the requirements of SEPP 55, specifically cl 7(1). The preliminary site investigation assessment which supports the amended DA, has its recommendations addressed by the Remedial Action Plan (RAP), as described in the conditions of consent. The parties expressed to the Court that the site is suitable for the proposed development. 11. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 12. The site is located within the R4 High Density Residential Zone, as described in the CLEP. The proposed development is permissible in the zone and satisfies the relevant objectives. 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. 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 plans, together with the conditions of consent address any potential amenity impacts that would warrant refusal of the DA. 14. The parties agree that the requirements of the CDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the CDCP. During the notification period for the amended plans, three submissions were received by Council. The Council considers that the issues raised in these submissions are satisfactorily resolved. 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. The parties have undertaken the merit assessment, as required to reach this agreement. 16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2/2019 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 amend the development application and rely on the amended plans and documents in condition 2 of Annexure A. 2. Pursuant to s8.15(3) of the Environmental Planning and Assessment Act, the applicant is to pay the respondent's s8.15(3) costs thrown away in the proceeding in the agreed amount of $6,000, within 28 days of the date of these Orders. 3. The appeal is upheld. 4. Development application DA-2/2019 seeking the demolition of existing structures and construction of a 3-storey residential flat building comprising of 9 units and car parking is approved subject to the conditions in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (332540, pdf) Architectural Plans (3376911, 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: 21 September 2020