Land and Environment Court New South Wales Medium Neutral Citation: Comlin Holdings Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1407 Hearing dates: Conciliation conference on 1 July 2021 Date of orders: 20 July 2021 Decision date: 20 July 2021 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended plans set out in Condition 2 of the Conditions set out in Annexure A. (2) The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $3,000 payable within 28 days. (3) The appeal is upheld. (4) Development consent is granted to Development Application DA-405/2019 for the erection of a boarding house comprising 12 rooms including an on-site manager's room, basement car parking and associated landscaping and site works at 22 Bass Road, Earlwood, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders Legislation Cited: Canterbury Local Environmental Plan 2012 cll 4.3, 4.4, 6.1(2), 6.2(3), 6.3, 6.4 Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy No 55 – Remediation of Land, cl 7(1) State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30A Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' (April 2021) Category: Principal judgment Parties: Comlin Holdings Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: S Berveling (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Salim Rutherford Lawyers (Applicant) Bankstown City Council (Respondent) File Number(s): 2019/368543 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 deemed refusal of Development Application DA 405/2019. The original application sought consent for the erection of a boarding house comprising 13 rooms with an on-site manager, basement car parking and associated landscaping and site works at 22 Bass Road, Earlwood. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 July 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 1 April 2021, the matter was conducted by Microsoft Teams and a site view was not undertaken. 4. The applicant had prepared amended plans that changed the design of the building and reduced the number of boarding rooms to 12. As a result of the changes made and additional information submitted for consideration, 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 the amended proposal 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant to consent the development application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. In that regard, the parties agree, and I am satisfied, Canterbury Local Environmental Plan 2012 (LEP) is the relevant environmental planning instrument. The site is zoned R3 Medium Density Residential, and the amended proposal is permissible with consent and is consistent with the objectives of the zone. 8. The proposal complies with the development standards for building height (8.5m) and floor space ratio (0.5:1) specified in cll 4.3 and 4.4 of the LEP respectively. 9. Consent is not required for works pursuant to the provisions of cl 6.1(2) of the LEP nor is an acid sulfate management plan required under subcl (3) in accordance with the findings of investigations conducted on behalf of the applicant and detailed in a report prepared by Sydney Environmental Group dated 26 June 2021. 10. I am satisfied that adequate consideration has been given to those matters that relate to Earthworks and detailed in cl 6.2(3) of the LEP and conditions of consent are appropriate to have regard to those provisions. 11. The site is not identified on the Flood Planning Map to which cl 6.3 applies and is not listed as an item of environmental heritage. 12. The parties agree that the issue of stormwater is the subject of Deferred Commencement conditions which requires registration of a downstream drainage easement; the development maximises the use of water permeable surfaces on the land and includes on-site stormwater retention of use as an alternative supply to mains water, ground water or river water and avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters. I accept that submission and am satisfied the terms of cl 6.4 of the LEP are met. 13. An assessment of the likelihood of contamination has been conducted in the form of a Combined Stage 1 Preliminary and Stage 2 Detailed Site Investigation. That report, dated 15 February 2021 and prepared by Sydney Environmental Group, concludes the site is suitable for the proposed residential use. Accordingly, I am satisfied that the application is consistent with the provisions of State Environmental Planning Policy No 55 – Remediation of Land. 14. The proposal is a BASIX-affected development pursuant to the provisions of cl 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate dated 29 June 2021 has been provided consistent with this Policy. 15. For consent to be granted, I must consider whether the design of the development is compatible with the character of the local area pursuant to the provisions of cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). In the absence of a site view, I have relied on the photographs included in the Statement of Environmental Effects dated June 2019 and filed with the application. In addition, I heard submissions from Mr Bonanno for the Council regarding the character of the area. I understand the area to include a range of housing types ranging from older style single storey detached dwellings, newer two and three-storey dwellings and two-storey multi-unit dwellings. The character is changing from a low-density area to higher density reflecting the upzoning of the land to R3 Medium Density Residential. 16. It is common ground that all relevant controls and development standards contained in SEPPARH are met. 17. For these reasons, I consider the design of the development would be compatible with the character of the local area. 18. The evidence of the Council is that there are no inconsistencies with relevant provisions of the relevant Development Control Plan. I accept that submission. 19. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed. 20. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council, including any submissions it received in response to notification of the application. 21. Accordingly, I am satisfied that the proposal is in the public interest. 22. 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. 23. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans set out in Condition 2 of the Conditions set out in Annexure A. 2. The Applicant is to pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed in the amount of $3,000 payable within 28 days. 3. The appeal is upheld. 4. Development consent is granted to Development Application DA-405/2019 for the erection of a boarding house comprising 12 rooms including an on-site manager's room, basement car parking and associated landscaping and site works at 22 Bass Road, Earlwood, subject to the conditions set out in Annexure A. ……………… Sue Morris Acting Commissioner of the Court Annexure A (316323, pdf) Plans (7930178, pdf) Operational Plan of Management (283800, 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: 20 July 2021