Land and Environment Court New South Wales Medium Neutral Citation: Chen v Canterbury-Bankstown Council [2021] NSWLEC 1644 Hearing dates: Conciliation conference on 29 September 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: The Court orders that: (1) The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $4,000.00. (2) The appeal is upheld. (3) Development Consent is granted to DA-1023/2019 for demolition of existing dwellings and construction of multi dwelling housing on the land at 179-181 Moorefields Road, Roselands NSW 2196 subject to the conditions set out in Annexure A. Catchwords: APPEAL – development application – multi dwelling housing – conciliation conference – agreement reached – orders made Legislation Cited: Canterbury Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 5.21 and 6.1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Local Land Services Act 2013, s 60O State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Canterbury Development Control Plan 2012 Category: Principal judgment Parties: Zhenyu Chen (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: J Eun (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: JCL Legal (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/187605 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns development application Council reference 1023/2019 (DA) for the demolition of existing structures, construction of two-storey multi dwelling housing consisting of 9 dwellings, the provision of at grade parking for each unit and three at grade visitor car spaces, landscaping and associated drainage on the land described as Lot B DP 349971 and Lot 4 DP 217675 and known as 179-181 Moorefields Road, Roselands (Site). The DA also proposes the consolidation of the existing two lots and the strata subdivision of the resulting development. The development for which consent is sought is described in this judgment as the Proposed Development. 2. The DA was amended by the Applicant with the agreement of the Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. The Applicant uploaded the amended application to the NSW Planning Portal on 5 October 2021 and the amended proposal was then filed with the Court on 12 October 2021. 3. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act. 5. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 29 September 2021. I presided over the conciliation conference. 6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 14 October 2021 and is supported by an Agreed Statement of Jurisdictional Prerequisites prepared by the parties which sets out the basis for the agreement and the jurisdictional prerequisites for the grant of development consent. The agreement involves the Court granting development consent to the DA subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. 8. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons: 1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act. 2. The Site is within Zone R3 Medium Density Residential under the Canterbury Local Environmental Plan 2012 (LEP). The Proposed Development may be carried out with development consent on land within that zone. 3. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with, the objectives of the R3 Medium Density Residential zone in the LEP. Those objectives include the following: • 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. 1. The Proposed Development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The applicable maximum building height is 9.5 m and the maximum height of the Proposed Development is 8.494 m. The applicable maximum FSR is 0.5:1 and the FSR of the Proposed Development is 0.499:1. 2. The parties' agreed position, which I accept, is that cl 6.1 of the LEP, which concerns acid sulfate soils, and cl 5.21, which deals with flood planning, do not apply to the Site. 3. The State Environmental Planning Policy No 55—Remediation of Land applies to the Site. Under cl 7 of this Policy, a consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. A single storey fibro dwelling house is currently situated on each lot comprising the Site and the Site has been used for residential purposes for many years. I am satisfied the Site is therefore unlikely to be contaminated and is suitable for the Proposed Development. 4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) applies to the Site. An authority under the Vegetation SEPP is not required for vegetation clearing that is of a kind authorised under s 60O of the Local Land Services Act 2013 (LLS Act). Vegetation clearing authorised by a development consent under Pt 4 of the EPA Act is a kind of vegetation clearing that is authorised under s 60O of the LLS Act. Accordingly, if the DA is approved, no further approval under the Vegetation SEPP will be required for any tree removal. 5. In accordance with the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX Certificate 1247632M, prepared by Certified Energy 1, dated 8 October 2021 was submitted with the amended DA. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met. 6. The Canterbury Development Control Plan 2012 applies to the Site and I accept the parties' agreed submission that the Proposed Development either meets the relevant controls in that Plan or, if not, achieves the objectives of those controls. 7. The Council's Statement of Facts and Contentions indicates that the development application was publicly advertised for a period of 14 days from 4 December 2019 to 17 December 2019. One submission was received by the Respondent which requested that any first-floor windows which overlook the submitter's property have fixed privacy louvres to mitigate direct overlooking. The submission also requested that existing boundary fencing be replaced. While the Proposed Development does not include fixed louvres, the window sizes and orientation have been revised and conditions have been imposed to address privacy issues. I accept the parties' agreed position that the amended DA and conditions of consent satisfactorily address the issues raised by the objector to the extent that this is possible and reasonable. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that: 1. The Applicant has amended the development application with the consent of the Respondent Council. 2. The Applicant has uploaded the amended application comprising all the documents and plans set out in Condition 1 of Annexure A to the NSW planning portal on 5 October 2021. 3. The Applicant filed the amended application with the Court on 12 October 2021. 1. The Court orders that: 1. The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $4,000.00. 2. The appeal is upheld. 3. Development Consent is granted to DA-1023/2019 for demolition of existing dwellings and construction of multi dwelling housing on the land at 179-181 Moorefields Road, Roselands NSW 2196 subject to the conditions set out in Annexure A. ………………………… A Bradbury Acting Commissioner of the Court Annexure A (258513, 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: 27 October 2021