Land and Environment Court New South Wales Medium Neutral Citation: Santos Architecture Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1274 Hearing dates: 14 May 2021 Date of orders: 21 May 2021 Decision date: 21 May 2021 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [27] Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – R3 medium density residential zone – consolidation of lots of land – orders by consent of the parties Legislation Cited: Canterbury Local Environmental Plan 2012, cll 4.3, 4.4, 6.2, 6.4, 6.6 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Category: Principal judgment Parties: Santos Architecture Pty Limited (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: M Staunton (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2020/23443 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Canterbury-Bankstown Council (the Respondent) of Development Application No DA-451/2019 seeking consent for the demolition of two existing dwellings and associated structures, and the construction of 8 x three-bedroom multi-dwelling housing development including one level of basement car parking containing 16 x residential parking spaces, 3 x visitor parking spaces and 1 x car wash bay and associated landscaping works at 18-22 Northcote Street, Canterbury (the site). 2. It is relevant to record here that the matter was listed for conciliation in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 18 September 2020, at which I presided. As the parties were unable to reach agreement on all issues in dispute at the time, I terminated the conciliation conference and the parties sought a date for hearing. 3. The matter was listed before me under s 34(4)(b) of the LEC Act. On the eve of the hearing, the parties advised the Court that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. Accordingly, the parties by consent now seek the Court to dispose of the matter, on the basis of amendments made to the application, and in accordance with s 34(4)(b)(i) of the LEC Act. 5. Furthermore, the parties also consent to the Court relying upon what it saw during the onsite view, and upon the discussions had at the conciliation conference in accordance with s 34(12) of the LEC Act. 6. At the commencement of the hearing, the Applicant was granted leave to amend the application and rely upon the following amended plans and other documents contained in Exhibit B, subject to costs pursuant to s 8.15(3) of the EPA Act: * Amended architectural plans (Tab 4), amended landscape plans (Tab 5) and amended stormwater plans (Tab 6). * DA Design Review – Access Report prepared by Philip Chun Building Compliance dated 9 October 2020 (Tab 7). * Letter prepared by McLaren Traffic Engineering dated 6 November 2020 (Tab 8). * Amended Acoustic Report by Acoustic Noise and Vibration Solutions dated 16 September 2020 (Tab 10). * Waste Management Statement (undated) (Tab 8). * Preliminary Site Investigation prepared by Geotechnique dated 10 June 2016 (Tab 13). * Detailed Site Investigation prepared by Geotechnique dated 9 October 2020 (Tab 12). * Further Contamination Assessment and Revised Remedial Action Plan prepared by Geotechnique dated 9 March 2021 (Tab 11). 1. The background facts to the matter as described by the Respondent are set out in the Statement of Facts and Contentions filed with the Court on 11 March 2020 (Exhibit 1). 2. The Respondent considers the amended plans and other documents listed at [6] to resolve the contentions set out in Exhibit 1. The site and its context 1. The site is legally described as Lot 1 in DP 85726, Lot 1 in DP 85727 and Lot 1 in DP 85725, having a total area of 2,750.3m2. 2. The site is currently occupied by an existing residential flat building that is proposed to be retained, and two single storey brick dwellings and associated structures that are proposed to be demolished. 3. The site is surrounded by development that is primarily a one and two-storey residential dwelling, with some older style residential flat buildings evident in the immediate vicinity to the north west of the site. Public notification 1. The application was notified by the Respondent in accordance with the Council's notification policy at Part A3 of the Canterbury Development Control Plan 2012 (CDCP) on three occasions. 2. I note here that the amended application was the subject of notification which ended on 12 May 2021 and in respect of which an objection was received, and was provided to the Court. 3. In broad terms the objection, contained at Exhibit A, Tab 18, expresses concern at the potential risks associated with excavation, location and operation of the vehicular access on the site, the scale of the proposed development and consistency with the relevant development standards. Consideration 1. The site is zoned R3 Medium Density Residential under the Canterbury Local Environmental Plan 2012 (CLEP), in which multi-dwelling housing development is permitted with consent, and wherein the objectives for development in the zone are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The development the subject of the development application comprises an existing residential flat building on the site. Residential flat buildings are not a permitted use in the zone, however the existing residential flat building has the benefit of a development consent that is in force and the consent is saved by operation of s 4.70 of the EPA Act. 2. Consolidation of the lots forms part of the application, and provision is made at Condition 89 of the agreed conditions of consent (Exhibit C) for the registering of the consolidation with NSW Land Registry Services prior to the issue of an occupation certificate. 3. The architectural plans at Exhibit A, Tab 4 clearly demonstrate that the proposed development complies with the development standard at cl 4.3 of the CLEP regulating the height of buildings on the site to a maximum of 8.5m. 4. The maximum floor space ratio (FSR) applicable to the site pursuant to cl 4.4 of the CLEP is 0:5.1. Drawing No 001 Rev E (Exhibit A, Tab 4) states the proposed development achieves an FSR of 0.49:1, and so complies. 5. On the basis of the Geotechnical Investigation Report prepared by Geotechnique Pty Limited dated 25 May 2015, the Remedial Action Plan also prepared by Geotechnique dated 9 March 2021 and the amended stormwater drainage plans I am satisfied that those matters required to be considered at cl 6.2(3) of the CLEP are addressed. 6. For similar reasons, and taking into consideration the deferred commencement condition of consent at A1 (Exhibit C) requiring a drainage easement to be obtained through a downstream property or properties in order for the site's stormwater to be collected and discharged to the kerb and gutter of Allen Street, and the extent of water permeable surfaces evident on the architectural and landscape plans, I am satisfied that the amended application minimises the impacts of urban stormwater on the subject site, and on adjoining properties in accordance with cl 6.4(3) of the CLEP. 7. I am also satisfied that as the existing dwellings and residential flat building on the site are currently connected to water, electricity and sewer services, that the services essential for the development are currently available to the site. Additionally, I am satisfied that the amended stormwater plans, amended architectural plans and the letter of advice prepared by McLaren Traffic Engineering dated 6 November 2020 demonstrate that the essential services listed at cl 6.6(a)-(e) of the CLEP will be available on the site when required. 8. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the following, I am satisfied that the land is contaminated, but is capable of being made suitable for the purpose for which the development is proposed to be carried out: * Preliminary Site Investigation prepared by Geotechnique dated 10 June 2016. * Detailed Site Investigation prepared by Geotechnique dated 9 October 2020. * Further Contamination Assessment and Revised Remedial Action Plan prepared by Geotechnique dated 9 March 2021. 1. The application is also accompanied by a BASIX Certificate (Certificate No. 863348M_03) prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000. 2. I am satisfied, after considering all of the evidence before me, that the development complies with the relevant development standards. I also consider the proposed development deserving of the grant of consent on an assessment of its merits for the reasons that follows: 1. Firstly, the proposed development cannot be regarded as an overdevelopment of the site as suggested by the objection behind Tab 17 of Exhibit B. In particular, I note the compliance of the proposal with the height and FSR control, and the extent of deep soil planting area of 774.2m2, being 28.1% of the total site area. 2. Secondly, and relatedly, I have had regard to the shadow diagrams behind Tab 16 of the Exhibit B and I find the impact of shadows on adjoining properties to be minor. 3. Thirdly, in considering the scale of the development in the context of Northcote Street, I record here that I consider the Streetscape Elevation shown on Drawing No 203 Issue E to demonstrate that the proposal is consistent with the objective at Part C3.3.2 of the CDCP which is: "To ensure that development is of a scale that is visually compatible with adjacent buildings, character of the area and objectives of the zone." 1. I also note that the amended architectural plans now show a setback to Northcote Street that is consistent with Part C3.3.3, Control C2(a) of the CDCP, and a roof form that is agreed between the parties to conform to Part C3.4.2 of the CDCP. 1. For the reasons set out above, I conclude that grant of development consent is warranted in accordance with s 4.16(1)(a) of the EPA Act. Orders 1. The Court orders that: 1. The Applicant is granted leave to amend the development application to rely upon the following plans and documents: 1. The amended architectural plans, landscape plans and stormwater plans referred to in the table to Condition 2 of Annexure A; 2. The DA Design Review – Access report prepared by Philip Chun Building Compliance dated 9 October 2020 and letter on bus stop relocation from McLaren Traffic Engineering dated 6 November 2020 both referred to in the table to Condition 2 of Annexure A; 3. The acoustic report by Acoustic Noise and Vibration Solutions dated 16 September 2020; 4. The Waste Management Statement (undated); 5. The Further Contamination Assessment & Revised Remedial Action Plan prepared by Geotechnique Pty Limited, dated 9 March 2021, reference 14769/3-AA. 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent the sum of $4,000.00 being costs thrown away as a result of the amendment of the application. 2. The Appeal is upheld. 3. Development Application No DA-451/2019 for the retention of the existing two storey residential flat building comprising 6 x 2 bedroom apartments, demolition of two existing dwellings and associated structures and construction of an 8 x three bedroom multi-dwelling housing development including one level of basement car parking containing 16 x residential parking spaces, 3 x visitor parking space and 1 x car wash bay and associated landscape works at 18-22 Northcote Street, Canterbury is approved subject to the conditions in Annexure A. 4. The Exhibits are returned, except for Exhibit A and B. …………………… T Horton Commissioner of the Court Annexure A (280589, pdf) Architectural Plans (4295007, 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 May 2021