Land and Environment Court New South Wales Medium Neutral Citation: Design Studio 407 Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 1618 Hearing dates: Conciliation conference on 27 November 2020, final agreement filed 24 November 2020 Date of orders: 9 December 2020 Decision date: 09 December 2020 Jurisdiction: Class 1 Before: Pullinger AC Decision: Refer to orders below at [10] Catchwords: DEVELOPMENT APPLICATION – 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 (Building Sustainability Index: BASIX) 2004 Texts Cited: Canterbury Development Control Plan 2012 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: Design Studio 407 Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: A Hemmings (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2020/263561 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA-253/2020 (DA). The DA sought consent for alterations and additions to an existing 3-storey dwelling house (the proposal) at 60 Flers Avenue, Earlwood (the site) by Canterbury-Bankstown Council (the Council). 2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 November 2020. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 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. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. The amended proposal reduces the proposed height of external walls and increases set backs to achieve consistency with the Canterbury Development Control Plan 2012. Additionally, boundary screening landscape has been incorporated and an amended roof form adopted in a manner eliminating overshadowing impacts. 6. 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. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied the amended proposal is consistent with the principal development standards set out in Part 4 of the Canterbury Local Environmental Plan 2012. 8. Additionally, I am satisfied a BASIX Certificate has been submitted in support of the amended proposal fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 9. Accordingly, I am satisfied it is appropriate to make the orders agreed by the parties and dispose of the matter under s 34(3)(a) and (b) of the LEC Act. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to rely on the following architectural plans prepared by Design Studio: 1. Drawing No. 1557-001, Revision D, dated 2 October 2020; 2. Drawing No. 1557-002, Revision D, dated 2 October 2020; 3. Drawing No. 1557-003, Revision D, dated 2 October 2020; 4. Drawing No. 1557-004, Revision D, dated 2 October 2020; 5. Drawing No. 1557-005, Revision D, dated 2 October 2020; 6. Drawing No. 1557-006, Revision D, dated 2 October 2020; 7. Drawing No. 1557-007, Revision D, dated 2 October 2020; 8. Drawing No. 1557-008, Revision D, dated 2 October 2020; 9. Drawing No. 1557-009, Revision D, dated 2 October 2020; 10. Drawing No. 1557-010, Revision D, dated 2 October 2020; 11. Drawing No. 1557-011, Revision D, dated 2 October 2020; 12. Drawing No. 1557-012, Revision D, dated 2 October 2020; 13. Drawing No. 1557-013, Revision D, dated 2 October 2020; 14. Drawing No. 1557-014, Revision D, dated 2 October 2020; 15. Drawing No. 1557-015, Revision D, dated 2 October 2020; 16. Drawing No. 1557-016, Revision D, dated 2 October 2020; 17. Drawing No. 1557-017, Revision D, dated 2 October 2020; 18. Drawing No. 1557-018, Revision D, dated 2 October 2020; 19. Drawing No. 1557-019, Revision D, dated 2 October 2020; and 20. Drawing No. 1557-020, Revision D, dated 2 October 2020. 1. Leave is granted to the Applicant to rely upon the following additional document: 1. Letter from Gerard Barry Associates dated 2 October 2020. 1. The appeal is upheld. 2. Development application DA 253/2020 for the alterations and additions to the existing dwelling, inclusive of pool and front fence at 60 Flers Avenue, Earlwood be determined by the grant of development consent, subject to conditions set out in Annexure A. 3. Each party to pay their own costs of the proceedings. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (170306, 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: 09 December 2020