Sapkota v Campbelltown City Council [2020] NSWLEC 1590

Land and Environment Court New South Wales

Medium Neutral Citation: Sapkota v Campbelltown City Council [2020] NSWLEC 1590 Hearing dates: Conciliation conference on 20 November 2020 Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [15] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Campbelltown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Campbelltown (Sustainable City) Development Control Plan 2015 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Mukunda Raj Sapkota (Applicant) Campbelltown City Council (Respondent) Representation: Counsel: P Duffy (Solicitor) (Applicant) J Corradini-Bird (Solicitor) (Respondent)

Solicitors: Duffy Law Group (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/220077 Publication restriction: No

Judgment 1. COMMISSIONER: Mukunda Sapkota (the Applicant) has appealed the refusal by Campbelltown City Council (the Respondent) of his development application 3220/2017/DA-RS, made with the owners' consent, seeking approval for demolition of existing structures, tree removal, construction of a multi-dwelling housing development comprising four two-storey dwellings, and the subdivision of land (the Proposed Development) at 99 Cumberland Road, Ingleburn (the Subject Site). 2. The Subject Site is zoned R3 Medium Density Residential under the provisions of Campbelltown Local Environmental Plan 2015 (CLEP), and the Applicant's Proposed Development is permissible with consent within this zone. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. On 9 July 2020, the Applicant was granted leave to amend the development application and to rely upon amended plans and documents in the proceedings. The amendments made to the development application at that time included provision for the proposed development to be carried out in four stages, as follows: 1. Stage 1: demolition of the existing clad shed and pool at the rear of the site. 2. Stage 2: construction of Dwelling 1 and associated works. 3. Stage 3: demolition of the existing dwelling house and other remaining structures. 4. Stage 4: construction of Dwellings 2, 3 and 4 and subdivision. 1. The Applicant now seeks leave to further amend the development application and rely upon the amended plans and documentation. 2. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 20 November 2020, and I presided over the conciliation conference. 3. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy), and no site view was undertaken during the conference. No objectors sought to make submissions to the Court in relation to the appeal as part of the conciliation conference. 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 involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 5. 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. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. in relation to the provisions of CLEP: 1. the Respondent has advised, and I am satisfied, that regard has been had to the objectives of the Zone R3 Medium Density Residential and the Proposed Development is considered to satisfy all objectives but for the third and fifth objectives, which are not relevant to the Proposed Development given its residential nature; 2. no minimum lot size is shown as applying to the Subject Site on the Lot Size Map referred to in cl 4.1(2) of CLEP; 3. pursuant to the Height of Buildings Map referred to in cl 4.3(2), the Subject Site is subject to a maximum building height of 9 metres. The Proposed Development does not exceed 9 metres in height; 4. the Proposed Development does not exceed two-storeys consistent with the requirement in cl 4.3A; 5. although no maximum floor space ratio applies to the Subject Site as a consequence of the Floor Space Ratio Map referred to in cl 4.4(2) of CLEP, under the provisions of cl 4.4(2A) a maximum floor space ratio of 0.75:1 applies to multi dwelling housing in Zone R3 Medium Density Residential. The Proposed Development does not exceed that maximum floor space ratio; 6. the Subject Site does not contain a heritage item and is not in a heritage conservation area identified in Schedule 5 of CLEP and it is not in close proximity to any heritage item or heritage conservation area; 7. the Subject Site is not mapped on any of the following maps within CLEP: 1. Land Reservation Acquisition Map (clause 5.1); 2. Environmental Constraints Map; 3. Terrestrial Biodiversity Map (clause 7.2); 4. Lot Size for Dual Occupancy Map; 5. Additional Permitted Uses Map; 6. Restricted Dwelling Yield Map; 7. Centres Map; or 8. Urban Release Map (Part 6). 1. the Subject Site is not at or below the flood planning level and so cl 7.2 of CLEP does not apply; 2. the Subject Site is not subject to the application of cl 7.3 regarding riparian land and watercourses; 3. the Subject Site is not affected by groundwater salinity and nor will the Proposed Development have an adverse impact upon salinity processes on any land and so cl 7.4 does not apply; 4. the provisions of cl 7.13 concerning design excellence of CLEP does apply to the Proposed Development because the Subject Site is zoned R3 Medium Density Residential. The Respondent has said, and I am satisfied, that the Proposed Development exhibits design excellence having regard to the matters specified in cl 7.13(4) of CLEP; 5. the Respondent has also advised, and I am satisfied, that the essential services identified in cl 7.10 of CLEP are available or adequate arrangements have been made to make them available when required in relation to the Proposed Development. 1. pursuant to the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, and in accordance with requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), BASIX Certificate No. 1089564M dated 25 March 2020 has been provided by the Applicant to accompany the development application; 2. consideration has been given as to whether the Subject Site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). In that regard: 1. a search of the Respondent's records for evidence of potentially contaminating activities was undertaken on 7 August 2019; 2. no evidence was found as a consequence of that search of contaminating land activities having occurred on the Subject Site; 3. given the long-term use of the site for residential purposes, the Parties submit, and I am satisfied, that the Subject Site is not likely to be contaminated; and 4. no further consideration is required under cl 7(1)(b) and (c) of SEPP 55 and the land is considered to be suitable for its proposed residential land use; 1. the Applicant's development application was notified in accordance with the requirements of the EP&A Act, the EP&A Regulation and the Campbelltown (Sustainable City) Development Control Plan 2015, and no submissions were received in response to that notification. 1. Having considered the advice of the Parties, provided above at [10], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 2. I am further 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. 3. 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. 4. In making the orders to give effect to the agreement between the Parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the Parties. 5. The Court orders that: 1. The Applicant is granted leave to amend the development application and rely on the following amended plans and documents: Plan Detail Job Number Prepared by Date Landscape Concept Plan 2011-03 Pdla Landscape Architects 06/10/2020 Demolition Plan, Sheet 5/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 Subdivision Plan, Sheet 6/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 Proposed Site Plan, Sheet 7/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 1 Floor Plan, Sheet 12/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 1 Elevations, Sheet 13/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 1 Elevation and Section, Sheet 14/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Ground Floor Plan, Sheet 15/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Upper Floor Plan, Sheet 16/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Elevations, Sheet 17/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Elevations, Sheet 18/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Section B-B, Sheet 19/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 4 Floor Plan, Sheet 20/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 4 Elevations, Sheet 21/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 4 Elevation and Section, Sheet 22/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 4 Section, Sheet 23/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 1 Colour Schedule, Sheet 25/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 2 & 3 Colour Schedule, Sheet 26/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 House 4 Colour Schedule, Sheet 27/27, Issue R 17176-19 Accurate design and drafting 28/09/2020 Landscape Concept Plan, Sheet 1 of 1 Plan No. 2011-03 Pdla Landscape Architects 6/10/2020 Cover Page Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D1, Rev G Driveway Plan Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D1, Rev G Drainage Plan Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D2, Rev G Alterative Drainage Plan Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D3, Rev G Typical Tank Plan Detail and Typical Tank Section Detail Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D4, Rev G Calculation summary sheet Dwg No. 180823G D&M Consulting Pty Ltd 8/10/2020 Sheet D4, Rev G