Land and Environment Court New South Wales Medium Neutral Citation: Architecture Design Studio (NSW) Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1488 Hearing dates: Conciliation conference held on 16 December 2020, 27 January, 25 February and 30 July 2021 Date of orders: 24 August 2021 Decision date: 24 August 2021 Jurisdiction: Class 1 Before: Morris AC Decision: See Orders below at [27] Catchwords: DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties Legislation Cited: Canterbury Local Environmental Plan 2012 cll 4.1C, 4.3, 4.6, 5.10, 5.11, 6.1, 6.3 Environmental Planning and Assessment Act 1979 cl 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 30A State Environmental Planning Policy No 55—Remediation of Land cl 7.1 Texts Cited: Canterbury Development Control Plan 2012 Land and Environment Court, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Architecture Design Studio (NSW) Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: C Ireland (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Birchgrove Legal (Applicant) Canterbury-Bankstown Council File Number(s): 2020/227048 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 DA640/2019. The application sought consent for the demolition of existing structures and construction of a three storey boarding house at 84 Wangee Road, Lakemba. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 December 2020 and included a site view. I presided over that and the subsequent conciliation conferences. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams however a site view was undertaken prior to commencement of the original conciliation conference. 4. Following the original conciliation conference and the preparation of amended plans and additional reports, 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. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council's Statement of Facts and Contentions filed on 28 September 2020. 5. The application was formally amended on by lodgement on the NSW Planning Portal on 19 August 2021. 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. 8. In that regard, the parties agree, and I am satisfied, Canterbury Local Environmental Plan 2012 (LEP) and State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) are the relevant environmental planning instruments. The site is zoned R4 High Density Residential, and the amended proposal is permissible with consent. 9. The proposal complies with all of the relevant development standards in Part 4 of the LEP other than the provisions of cl 4.3 Height of Buildings. 10. The Applicant has filed a clause 4.6 variation request to vary the development standard for building height under cl 4.3 under the LEP. The clause requires a maximum building height of 8.5m. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the LEP). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP). 1. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the LEP are met. In particular, the flood prone nature of the site and the proximity of the proposed building to the stormwater channel that runs through the site necessitate that the habitable floors of the building be above the flood planning level. 2. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R4 High Density Residential zone and the objectives in cl 4.3 that apply to the maximum building height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met. 3. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 4. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control. 5. The site is not identified as an item of environmental heritage nor is it located within a Heritage Conservation Area (cl 5.10). It is not subject to bushfire hazard (cl 5.11) or identified as affected by acid sulfate soils (cl 6.1). 6. The site is flood prone (cl 6.3) however the applicant has adequately demonstrated that the provisions of the clause are satisfied, and stormwater issues have been satisfactorily addressed. The Council has imposed consent conditions to reflect its requirements including compliance with the requirements of Sydney Water, the authority responsible for stormwater within the channel that affects the site. 7. The applicant has prepared a Detailed Site Investigation addressing contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land and I am satisfied, pursuant to the provisions of cl 7(1) of that policy that the site can be made suitable for the proposed residential use and that the consent conditions ensure that this will occur. 8. The Council is satisfied the development is compliant with the relevant provisions of SEPPARH. 9. Having regard to the location of the site and the character of the area, I consider the design of the development is compatible with the character of the local area. Accordingly, the test in cl 30A of SEPPARH is satisfied. 10. There are no draft planning proposals that apply to the land. At the time the application was lodged, the Council had exhibited a planning proposal that would restrict the size of land on which boarding houses could be constructed. That planning proposal has been made and the LEP has been amended. Clause 4.1C of the LEP requires, in the R4 zone, a minimum site area of 1000m2 and a minimum site frontage of 20. Because the stormwater channel forms part of the site, these development standards are met. 11. The evidence of the Council is that the development is consistent with the provisions and objectives of the Canterbury Development Control Plan 2012 (DCP) and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission. 12. There are not any other matters contained in the Regulation that prevent grant of consent. 13. 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. 14. 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. 15. Accordingly, I am satisfied that the proposal is in the public interest. 16. 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. 17. The Court orders that: 1. The appeal is upheld. 2. The application for development consent to Development Application DA 640/2019 for a three storey residential boarding house containing 23 rooms and associated facilities including a communal room, and one basement level of parking containing 5 car spaces, 3 motorcycle spaces and 5 bicycle spaces is approved. 3. Consent is granted subject to the conditions of consent annexed hereto and marked "A". ……………………. Sue Morris Acting Commissioner of the Court Annexure A (352740, 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: 24 August 2021